us-irs-revenue-procedures-irb-2023-1-pdf•Internal Revenue Bulletin 2023-1 (PDF rendition): IRS Revenue Procedures
Internal Revenue Bulletin 2023-1 (PDF rendition): IRS Revenue Procedures
us-irs-revenue-procedures-irb-2023-1-pdfInternal Revenue Bulletin 2023-1 (PDF rendition): IRS Revenue ProceduresGuidance
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Bulletin No. 2023–1 January 3, 2023 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. ADMINISTRATIVE Rev. Proc. 2023-1, page 1. This procedure contains revised procedures for letter rul- ings and information letters issued by the Associate Chief Counsel (Corporate), Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), As- sociate Chief Counsel (Financial Institutions and Products), Associate Chief Counsel (Income Tax and Accounting), Asso- ciate Chief Counsel (International), Associate Chief Counsel (Passthroughs and Special Industries), and Associate Chief Counsel (Procedure and Administration). This procedure also contains revised procedures for determination letters issued by the Large Business and International Division, Small Busi- ness/Self Employed Division, Wage and Investment Division, and Tax Exempt and Government Entities Division. Rev. Proc. 2022-1 superseded. Rev. Proc. 2023-2, page 120. This procedure explains when and how an Associate office within the Office of Chief Counsel provides technical advice, conveyed in technical advice memoranda (TAMs). It also explains the rights that a taxpayer has when a field office requests a TAM regarding a tax matter. Rev. Proc. 2022-2 superseded. Rev. Proc. 2023-3, page 144. The revenue procedure provides a revised list of areas of the Code under the jurisdiction of the Associate Chief Counsel (Corporate), the Associate Chief Counsel (Financial Institu- tions and Products), the Associate Chief Counsel (Income Tax and Accounting), the Associate Chief Counsel (Passthroughs and Special Industries), the Associate Chief Counsel (Proce- dure and Administration), and the Associate Chief Counsel (Employee Benefits, Exempt Organizations and Employment Taxes) relating to matters on which the Service will not issue letter rulings or determination letters. Rev. Proc. 2022-3, 2022-1 I.R.B. 144 is superseded. EMPLOYEE PLANS Rev. Proc. 2023-4, page 162. This document updates Rev. Proc. 2022-4, 2022-1 IRB 161, relating to the types of advice the IRS provides to taxpayers on issues under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division, Employee Plans Rulings and Agreements, and the procedures that apply to requests for determination letters and private letter rulings. EXEMPT ORGANIZATIONS Rev. Proc. 2023-5, page 265. This revenue procedure sets forth procedures for issu- ing determination letters on issues under the jurisdiction of the Director, Exempt Organizations (EO) Rulings and Agreements. Specifically, it explains the procedures for issuing determination letters on tax-exempt status (in response to applications for recognition of exemption from Federal income tax under §§ 501 or 521 other than those subject to Rev. Proc. 2023-4, this Bulletin (relating to pension, profit-sharing, stock bonus, an- nuity, and employee stock ownership plans)), private foundation status, and other determinations related to tax-exempt organizations. These procedures also apply to revocation or modification of determination letters. This revenue procedure also provides guidance on the exhaustion of administrative remedies for purposes of declaratory judgment under § 7428. Finally, this reve- nue procedure provides guidance on applicable user fees for requesting determination letters. Finding Lists begin on page ii. INCOME TAX Rev. Proc. 2023-7, page 305. Areas in which rulings will not be issued, Associate Chief Counsel (International). The IRS Mission Provide America’s taxpayers top-quality service by helping them understand and meet their tax responsibilities and en- force the law with integrity and fairness to all. Introduction The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing of- ficial rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conventions, legislation, court decisions, and other items of general interest. It is published weekly. 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, modify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless other- wise indicated. Procedures relating solely to matters of inter- nal management 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 rul- ings 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.—1986 Code. This part includes rulings and decisions based on provisions of the Internal 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, Legislation 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 Rulings. Bank Secrecy Act Administrative Rulings are issued by the Department of the Treasury’s Office of the Assistant Secretary (Enforcement). Part IV.—Items of General Interest. This part includes notices of proposed rulemakings, disbar- ment and 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 contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. January 3, 2023 Bulletin No. 2023–1 Part III 26 CFR § 601.201: Rulings and determination letters Rev. Proc. 2023-1 TABLE OF CONTENTS SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? .....................................7 .01 Description of terms used in this revenue procedure ......................................................7 .02 Updated annually .................................................................................8 SECTION 2. WHAT ARE THE FORMS IN WHICH THE SERVICE PROVIDES ADVICE TO TAXPAYERS? ..........8 .01 Letter ruling .....................................................................................8 .02 Closing agreement ................................................................................8 .03 Determination letter ...............................................................................9 .04 Information letter .................................................................................9 .05 Oral advice ......................................................................................9 (1) No oral rulings and no written rulings in response to oral requests .......................................9 (2) Discussion possible on substantive issues .........................................................10 (3) Oral guidance is advisory only, and the Service is not bound by it ......................................10 SECTION 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN ADVICE UNDER THIS REVENUE PROCEDURE? ....................................................................10 .01 Issues under the jurisdiction of the Associate Chief Counsel (Corporate) .....................................10 .02 Issues under the jurisdiction of the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) ...........................................................................11 .03 Issues under the jurisdiction of the Associate Chief Counsel (Financial Institutions and Products) .................11 .04 Issues under the jurisdiction of the Associate Chief Counsel (Income Tax and Accounting) ......................11 .05 Issues under the jurisdiction of the Associate Chief Counsel (International). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 .06 Issues under the jurisdiction of the Associate Chief Counsel (Passthroughs and Special Industries) ................12 .07 Issues under the jurisdiction of the Associate Chief Counsel (Procedure and Administration) .....................12 SECTION 4. O N WHAT ISSUES MUST WRITTEN ADVICE BE REQUESTED UNDER DIFFERENT PROCEDURES? ............................................................................12 .01 Issues involving alcohol, tobacco, and firearms taxes ....................................................12 .02 Certain issues involving qualified retirement plans, individual retirement accounts (IRAs), and exempt organizations .............................................................................12 SECTION 5. UNDER WHAT CIRCUMSTANCES DO THE ASSOCIATE OFFICES ISSUE LETTER RULINGS? ......12 .01 In income and gift tax matters ......................................................................13 .02 Special relief for late S corporation and related elections in lieu of letter ruling process .........................13 .03 A § 301.9100 request for extension of time for making an election or for other relief ...........................13 (1) Format of request ............................................................................13 (2) Period of limitation ...........................................................................13 (3) Taxpayer must notify the Associate office if examination of its return begins while the request is pending .......14 (4) Associate office will notify the examination agent, Appeals officer, or attorney of a § 301.9100 request if the taxpayer’s return is being examined by a field office or is being considered by an Appeals office or a Federal court ..............................................................................14 (5) Inclusion of statement required by section 4.04 of Rev. Proc. 2009-41 ...................................14 (6) Relief for late classification election .............................................................14 .04 Determinations under § 999(d) ......................................................................14 .05 In matters involving § 367 .........................................................................15 .06 In estate tax matters ..............................................................................15 .07 In matters involving additional estate tax under § 2032A(c) ...............................................15 .08 In matters involving qualified domestic trusts under § 2056A ..............................................15 .09 In generation-skipping transfer tax matters ............................................................15 Bulletin No. 2023–1 1 January 3, 2023 .10 In employment and excise tax matters ................................................................15 .11 In procedural and administrative matters ..............................................................16 .12 In Indian tribal government matters ..................................................................16 (1) Definition of Indian tribal government ............................................................16 (2) Inclusion in list of tribal governments ............................................................16 .13 On constructive sales price under § 4216(b) or § 4218(c) .................................................16 .14 In exempt organizations matters .....................................................................17 .15 In qualified retirement plan and IRA matters ...........................................................17 .16 A request to revoke an election .....................................................................17 .17 Under some circumstances before the issuance of a regulation or other published guidance ......................18 (1) Answer is clear or is reasonably certain ...........................................................18 (2) Answer is not reasonably certain ................................................................18 SECTION 6. UNDER WHAT CIRCUMSTANCES DOES THE SERVICE NOT ISSUE LETTER RULINGS OR DETERMINATION LETTERS? ............................................................18 .01 Ordinarily not if the request involves an issue under examination or consideration or in litigation .................18 .02 Ordinarily not in certain areas because of factual nature of the problem or for other reasons. . . . . . . . . . . . . . . . . . . . . .19 .03 Ordinarily not on part of an integrated transaction ......................................................19 (1) General rule ................................................................................19 (2) Significant issue ruling ........................................................................19 (3) Submission requirements ......................................................................19 .04 Ordinarily not on which of two entities is a common law employer .........................................20 .05 Ordinarily not to business associations or groups .......................................................20 .06 Ordinarily not where the request does not address the tax status, liability, or reporting obligations of the requester ....................................................................................21 .07 Ordinarily not to foreign governments ................................................................21 .08 Ordinarily not on Federal tax consequences of proposed legislation .........................................21 .09 Ordinarily not before issuance of a regulation or other published guidance ...................................21 .10 Not on frivolous issues ............................................................................21 .11 No “comfort” letter rulings .........................................................................22 .12 Not on alternative plans or hypothetical situations ......................................................22 .13 Not on property conversions after return filed ..........................................................22 .14 Circumstances under which determination letters are not issued by a Director .................................22 SECTION 7. WHAT ARE THE GENERAL INSTRUCTIONS FOR REQUESTING LETTER RULINGS AND DETERMINATION LETTERS? ...........................................................23 .01 Documents and information required in all requests .....................................................23 (1) Complete statement of facts and other information ..................................................23 (2) Copies of all contracts, wills, deeds, agreements, instruments, other documents pertinent to the transaction, and foreign laws ...................................................................24 (3) Analysis of material facts ......................................................................25 (4) Statement regarding whether same issue is presented in any return and additional information required for § 301.9100 requests .......................................................................25 (5) Statement regarding whether same or similar issue was previously ruled on or whether a request involving it was submitted or is currently pending ..................................................25 (6) Statement regarding interpretation of a substantive provision of an income or estate tax treaty ................26 (7) Statement regarding involvement of a transactional party located in a foreign country ......................26 (8) Letter from Bureau of Indian Affairs relating to a letter ruling request for recognition of Indian tribal government status or status as a political subdivision of an Indian tribal government. .......................27 (9) Statement of supporting authorities ..............................................................27 (10) Statement of contrary authorities ................................................................27 (11) Statement identifying pending legislation .........................................................28 (12) Statement identifying information to be deleted from the public inspection copy of letter ruling or determination letter ...........................................................................28 (13) Signature by taxpayer or authorized representative ..................................................30 (14) Authorized representatives .....................................................................30 (15) Power of Attorney and Declaration of Representative ................................................31 (16) Penalties of perjury statement ..................................................................32 January 3, 2023 2 Bulletin No. 2023–1 Bulletin No. 2023–1 3 January 3, 2023 (17) Sample format for a letter ruling request ..........................................................33 (18) Checklist for letter ruling requests ...............................................................33 .02 Additional procedural information required with request .................................................33 (1) To request separate letter rulings for multiple issues in a single situation .................................33 (2) Power of attorney used to indicate recipient or recipients of a copy or copies of a letter ruling or a determination letter .........................................................................33 (3) To request a particular conclusion on a proposed transaction ..........................................34 (4) To request expedited handling ..................................................................34 (5) To request the receipt of any document related to letter ruling request by fax, electronic facsimile, or encrypted email attachment ....................................................................35 (6) To request a conference .......................................................................36 .03 Letter ruling requests involving welfare benefit funds (including voluntary employees’ beneficiary associations (VEBAs)) ............................................................................36 .04 Submitting request for letter ruling or determination letter ................................................36 (1) Submission by mail ..........................................................................36 (2) Submission by electronic facsimile ..............................................................37 (3) Submission by encrypted email attachment ........................................................38 .05 Pending letter ruling requests .......................................................................39 (1) Circumstances under which the taxpayer with a pending letter ruling request must notify the Associate office ...39 (2) Taxpayer must notify the Associate office if a return is filed and must attach the request to the return ..........40 .06 When to attach letter ruling or determination letter to return ...............................................40 .07 How to check on status of request for letter ruling or determination letter ....................................40 .08 Request for letter ruling or determination letter may be withdrawn or Associate office may decline to issue letter ruling ................................................................................40 (1) In general ..................................................................................40 (2) Notification of appropriate Service official ........................................................40 SECTION 8. HOW DO THE ASSOCIATE OFFICES HANDLE LETTER RULING REQUESTS? ...................41 .01 Technical Services Support Branch receives, initially controls, and refers the requests to the appropriate Associate office ..................................................................................41 .02 Branch representative of the Associate office contacts taxpayer within 21 calendar days .........................41 .03 Determines if transaction can be modified to obtain favorable letter ruling ...................................42 .04 Not bound by informal opinion expressed .............................................................42 .05 May request additional information ..................................................................42 (1) Additional information must be submitted within 21 calendar days .....................................42 (2) Extension of reply period if justified and approved ..................................................43 (3) Letter ruling request closed if the taxpayer does not submit additional information .........................43 (4) Penalties of perjury statement ..................................................................43 (5) Transmitting request and submitting additional information by fax, electronic facsimile, or encrypted email attachment .............................................................................43 (6) Submitting additional information by mail ........................................................44 (7) Identifying information .......................................................................44 .06 Near the completion of the ruling process, advises the taxpayer of conclusions and, if the Associate office will rule adversely, offers the taxpayer the opportunity to withdraw the letter ruling request ......................44 .07 May request that taxpayer submit draft proposed letter ruling near the completion of the ruling process ............44 .08 Issues separate letter rulings for substantially identical letter rulings, but generally issues a single letter ruling for related § 301.9100 letter rulings .............................................................44 (1) Substantially identical letter rulings ..............................................................44 (2) Related § 301.9100 letter rulings ................................................................45 .09 Sends a copy of the letter ruling to appropriate Service official .............................................45 SECTION 9. WHAT ARE THE SPECIFIC AND ADDITIONAL PROCEDURES FOR A REQUEST FOR A CHANGE IN METHOD OF ACCOUNTING FROM THE ASSOCIATE OFFICES? ..................45 .01 Automatic and non-automatic change in method of accounting requests .....................................45 (1) Automatic change in method of accounting ........................................................45 (2) Non-automatic change in method of accounting ....................................................46 .02 Ordinarily only one change in method of accounting on a Form 3115, Application for Change in Accounting Method, and a separate Form 3115 for each taxpayer and for each separate and distinct trade or business ...........46 January 3, 2023 4 Bulletin No. 2023–1 .03 Information required with a Form 3115 ...............................................................46 (1) Facts and other information requested on Form 3115 and in applicable revenue procedures ..................46 (2) Statement of contrary authorities ................................................................47 (3) Copies of all contracts, agreements, and other documents .............................................47 (4) Analysis of material facts ......................................................................47 (5) Information regarding whether same issue is in an earlier return under examination ........................47 (6) Statement regarding prior requests for a change in method of accounting and other pending requests ..........47 (7) Statement identifying pending legislation .........................................................48 (8) Authorized representatives .....................................................................48 (9) Power of Attorney and Declaration of Representative ................................................48 (10) Tax Information Authorization ..................................................................48 (11) Penalties of perjury statement ..................................................................49 .04 Additional procedural information required in certain circumstances ........................................49 (1) Recipients of original and copy of change in method of accounting correspondence ........................49 (2) To request expedited handling ..................................................................49 (3) To request the receipt of the change in method of accounting letter ruling or any other correspondence related to Form 3115 by fax, electronic facsimile, or encrypted email attachment ..........................49 (4) To request a conference .......................................................................50 .05 Submitting non-automatic Forms 3115 ...............................................................50 (1) Submission by mail ..........................................................................50 (2) Submission by electronic facsimile ..............................................................51 (3) Submission by encrypted email attachment ........................................................51 .06 Submitting automatic Forms 3115 ...................................................................52 (1) Submission by mail ..........................................................................52 (2) Submission by fax ...........................................................................52 .07 Technical Services Support Branch receives, initially controls, and refers the Form 3115 to the appropriate Associate office .....................................................................53 .08 Additional information ............................................................................53 (1) Reply period ................................................................................53 (2) Request for extension of reply period ............................................................53 (3) Penalties of perjury statement for additional information .............................................53 (4) Identifying information included in additional information ............................................54 (5) Transmitting request and submitting additional information by fax, electronic facsimile, or encrypted email attachment .............................................................................54 (6) Submitting additional information by mail ........................................................54 (7) Failure to timely submit additional information to the Associate office ..................................55 .09 Circumstances in which the taxpayer must notify the Associate office .......................................55 .10 Determines if proposed method of accounting can be modified to obtain favorable letter ruling ...................55 .11 Near the completion of processing the Form 3115, advises the taxpayer if the Associate office will rule adversely and offers the taxpayer the opportunity to withdraw Form 3115 ....................................55 .12 Non-automatic Form 3115 may be withdrawn or Associate office may decline to issue a change in method of accounting letter ruling ...................................................................56 (1) In general ..................................................................................56 (2) Notification of appropriate Service official. ........................................................56 .13 How to check status of a pending non-automatic Form 3115 ..............................................56 .14 Service is not bound by informal opinion .............................................................56 .15 Single letter ruling issued to a taxpayer or consolidated group for qualifying identical change in method of accounting .............................................................................56 .16 Letter ruling ordinarily not issued for one of two or more interrelated items or submethods ......................56 .17 Consent Agreement ..............................................................................56 .18 A copy of the change in method of accounting letter ruling is sent to appropriate Service officials .................57 .19 Consent to change a method of accounting may be relied on subject to limitations .............................58 .20 Change in method of accounting letter ruling does not apply to another taxpayer ..............................58 .21 Associate office discretion to permit requested change in method of accounting ...............................58 .22 List of automatic change in method of accounting request procedures .......................................58 .23 Other sections of this revenue procedure that are applicable to Form 3115 ...................................59 Bulletin No. 2023–1 5 January 3, 2023 SECTION 10. HOW ARE CONFERENCES FOR LETTER RULINGS SCHEDULED? .............................61 .01 Schedules a conference if requested by taxpayer ........................................................61 .02 Permits taxpayer one conference of right ..............................................................61 .03 Disallows verbatim recording of conferences ..........................................................62 .04 Makes tentative recommendations on substantive issues ..................................................62 .05 May offer additional conferences ....................................................................62 .06 Requires written confirmation of information presented at conference .......................................62 .07 May schedule a pre-submission conference ............................................................63 (1) Taxpayer may request a pre-submission conference in writing or by telephone ............................63 (2) Pre-submission conference held in person or by telephone ............................................64 (3) Certain information required to be submitted to the Associate office prior to the pre-submission conference .....64 (4) Discussion of substantive issues not binding on the Service ...........................................64 .08 May schedule a conference to be held by telephone .....................................................64 SECTION 11. WHAT EFFECT WILL A LETTER RULING HAVE? .............................................64 .01 May be relied on subject to limitations ...............................................................64 .02 Will not apply to another taxpayer ...................................................................64 .03 Will be used by a field office in examining the taxpayer’s return ...........................................65 .04 May be revoked or modified if found to be in error or there has been a change in law ...........................65 .05 Letter ruling revoked or modified based on material change in facts applied retroactively .......................66 .06 Not otherwise generally revoked or modified retroactively ................................................66 .07 Retroactive effect of revocation or modification applied to a particular transaction .............................66 .08 Retroactive effect of revocation or modification applied to a continuing action or series of actions ................67 .09 Generally not retroactively revoked or modified if related to sale or lease subject to excise tax ...................67 .10 May be retroactively revoked or modified when transaction is entered into before the issuance of the letter ruling ....67 .11 Taxpayer may request that retroactive effect of revocation or modification be limited ...........................67 (1) Request for relief under § 7805(b) must be made in required format ....................................67 (2) Taxpayer may request a conference on application of § 7805(b) ........................................68 SECTION 12. UNDER WHAT CIRCUMSTANCES DO DIRECTORS ISSUE DETERMINATION LETTERS? ........68 .01 In income and gift tax matters ......................................................................69 .02 In estate tax matters ..............................................................................69 .03 In generation-skipping transfer tax matters ............................................................69 .04 In employment and excise tax matters ................................................................69 .05 In tax-exempt matters .............................................................................69 .06 Requests concerning income, estate, or gift tax returns ...................................................69 .07 Review of determination letters .....................................................................69 SECTION 13. WHAT EFFECT WILL A DETERMINATION LETTER HAVE? ...................................70 .01 Has same effect as a letter ruling ....................................................................70 .02 Taxpayer may request that retroactive effect of revocation or modification be limited ...........................70 (1) Request for relief under § 7805(b) must be made in required format ....................................70 (2) Taxpayer may request a conference on application of § 7805(b) ........................................71 SECTION 14. UNDER WHAT CIRCUMSTANCES ARE MATTERS REFERRED BETWEEN A DIRECTOR AND AN ASSOCIATE OFFICE? ..................................................71 .01 Requests for determination letters ...................................................................71 .02 No-rule areas ...................................................................................71 .03 Requests for letter rulings ..........................................................................71 .04 Letter ruling request mistakenly sent to a Director ......................................................71 SECTION 15. WHAT ARE THE USER FEE REQUIREMENTS FOR REQUESTS FOR LETTER RULINGS AND DETERMINATION LETTERS? ..........................................................71 .01 Legislation authorizing user fees ....................................................................71 .02 Requests to which a user fee applies .................................................................72 .03 Requests to which a user fee does not apply ...........................................................72 .04 Exemptions from the user fee requirements ............................................................73 January 3, 2023 6 Bulletin No. 2023–1 .05 Fee schedule ....................................................................................73 .06 Applicable user fee for a request involving multiple offices, fee categories, issues, transactions, or entities ..........73 (1) Requests involving several offices ...............................................................73 (2) Requests involving several fee categories .........................................................73 (3) Requests involving several issues ...............................................................73 (4) Requests involving several unrelated transactions ...................................................74 (5) Requests involving several entities ..............................................................74 (6) Requests made by married taxpayers who file jointly ................................................74 .07 Applicable user fee for requests for substantially identical letter rulings or closing agreements, or identical changes in method of accounting ............................................................74 (1) In general ..................................................................................74 (2) Substantially identical letter rulings and closing agreements ...........................................74 (3) Substantially identical plans under § 25(c)(2)(B) ...................................................75 (4) Identical changes in method of accounting and related § 301.9100 letter rulings ...........................75 .08 Method of payment ...............................................................................76 .09 Effect of nonpayment or payment of incorrect amount ...................................................77 .10 Refunds of user fee ...............................................................................77 .11 Request for reconsideration of user fee ...............................................................77 SECTION 16. WHAT SIGNIFICANT CHANGES HAVE BEEN MADE TO REVENUE PROCEDURE 2022-1? ........79 SECTION 17. WHAT IS THE EFFECT OF THIS REVENUE PROCEDURE ON OTHER DOCUMENTS? ............79 SECTION 18. WHAT IS THE EFFECTIVE DATE OF THIS REVENUE PROCEDURE? ...........................79 SECTION 19. PAPERWORK REDUCTION ACT .............................................................79 DRAFTING INFORMATION ..............................................................................80 INDEX .................................................................................................82 APPENDIX A—SCHEDULE OF USER FEES ................................................................85 APPENDIX B—SAMPLE FORMAT FOR A LETTER RULING REQUEST ......................................90 APPENDIX C—CHECKLIST: IS YOUR LETTER RULING REQUEST COMPLETE? ............................93 APPENDIX D—ADDITIONAL CHECKLIST FOR GOVERNMENT PICK-UP PLAN RULING REQUESTS .........98 APPENDIX E—ADDITIONAL CHECKLIST FOR CHURCH PLAN RULING REQUESTS ........................99 APPENDIX F— CHECKLISTS, GUIDELINE REVENUE PROCEDURES, NOTICES, SAFE HARBOR REVENUE PROCEDURES, AND AUTOMATIC CHANGE REVENUE PROCEDURES ............100 .01 Checklists, guideline revenue procedures, and notices ..................................................100 .02 Safe harbor revenue procedures ....................................................................105 .03 Automatic change in accounting period revenue procedures ..............................................109 APPENDIX G—MEMORANDUM OF UNDERSTANDING ACKNOWLEDGING RISK WITH EMAIL .............110 APPENDIX H— MEMORANDUMS OF UNDERSTANDING AGREEING TO USE ENCRYPTED EMAIL ATTACHMENTS ........................................................................111 .01 Agreement to use encrypted email attachments (compressed Zip format) ...................................111 .02 Agreement to use encrypted email attachments (Adobe Acrobat Pro password encryption) .....................114 .03 Agreement to use encrypted email attachments (Microsoft Office 2016/365 password encryption) ................117 Bulletin No. 2023–1 7 January 3, 2023 SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? T his revenue procedure explains how the Service provides advice to taxpayers on issues under the jurisdiction of the Associate Chief Counsel (Corporate), the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), the Associate Chief Counsel (Financial Institutions and Products), the Associate Chief Counsel (Income Tax and Accounting), the Associate Chief Counsel (International), the Associate Chief Counsel (Passthroughs and Special Industries), and the Associate Chief Counsel (Procedure and Administration). It explains the forms of advice and the manner in which advice is requested by taxpayers and provided by the Service. A sample format for a letter ruling request is provided in Appendix B. See section 4 of this revenue procedure for information on certain issues outside the scope of this revenue procedure on which advice may be requested under a different revenue procedure. Description of terms used in this revenue procedure .01 For purposes of this revenue procedure— (1) the term “Service” includes the four operating divisions of the Internal Revenue Service and the Associate offices. The four operating divisions are: (a) Large Business & International Division (LB&I), which generally serves corporations, S corporations, and partnerships, with assets in excess of $10 million. It also serves U.S. citizens and residents with offshore activities and non-residents with U.S. activities. (b) Small Business/Self-Employed Division (SB/SE), which generally serves corporations, including S corporations, and partnerships, with assets less than or equal to $10 million; filers of gift, estate, excise, employment and fiduciary returns; individuals filing an individual Federal income tax return with accompanying Schedule C (Profit or Loss From Business (Sole Proprietorship)), Schedule E (Supplemental Income and Loss), Schedule F (Profit or Loss From Farming), or Form 2106, Employee Business Expenses; (c) Wage and Investment Division (W&I), which generally serves individuals with wage and investment income only (and with no international tax returns) filing an individual Federal income tax return without accompanying Schedule C, E, or F, or Form 2106; and (d) Tax Exempt and Government Entities Division (TE/GE), which serves three distinct taxpayer segments: employee plans (including IRAs), exempt organizations, and government entities. (2) the term “Associate office” refers to the Office of Associate Chief Counsel (Corporate), the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), the Office of Associate Chief Counsel (Financial Institutions and Products), the Office of Associate Chief Counsel (Income Tax and Accounting), the Office of Associate Chief Counsel (International), the Office of Associate Chief Counsel (Passthroughs and Special Industries), or the Office of Associate Chief Counsel (Procedure and Administration), as appropriate. (3) the term “Director” refers to the Practice Area Director, LB&I; Director, Field Operations, LB&I; Area Director, Field Examination, SB/SE; Director, Specialty Examination Policy, SB/SE; Program Manager, Estate & Gift Tax Policy, SB/SE; Program Manager, Employment Tax Policy, SB/SE; Program Manager, Excise Tax Policy, SB/SE; Director, Return Integrity & Compliance Services, W&I; Director, Employee Plans; Director, Employee Plans, Rulings and Agreements; Director, Employee Plans Examinations; Director, Exempt Organizations; Director, Exempt Organizations, Rulings and Agreements; Director, Exempt Organizations Examinations; Director, Government Entities, as appropriate. (4) the term “field office” refers to the respective offices of the Directors, as appropriate. January 3, 2023 8 Bulletin No. 2023–1 (5) the term “taxpayer” includes all persons subject to any provision of the Internal Revenue Code and, when appropriate, their representatives. More specifically, the term includes tax-exempt organizations, as well as issuers of tax-exempt obligations, mortgage credit certificates, and tax credit bonds. (6) the terms “Appeals” and “Appeals office” refer to the Internal Revenue Service Independent Office of Appeals. Updated annually .02 This revenue procedure is updated annually as the first revenue procedure of the year, but it may be modified, amplified or clarified during the year. The Service provides advice in the form of letter rulings, closing agreements, determination letters, information letters, and oral advice. SECTION 2. WHAT ARE THE FORMS IN WHICH THE SERVICE PROVIDES ADVICE TO TAXPAYERS? Letter ruling . 01 A “letter ruling” is a written determination issued to a taxpayer by an Associate office in response to the taxpayer’s written inquiry, filed prior to the filing of returns or reports that are required by the tax laws, about its status for tax purposes or the tax effects of its acts or transactions. A letter ruling interprets the tax laws and applies them to the taxpayer’s specific set of facts. A letter ruling is issued when appropriate in the interest of sound tax administration. One type of letter ruling is an Associate office’s response granting or denying a request for a change in a taxpayer’s method of accounting or accounting period. Once issued, a letter ruling may be revoked or modified for a number of reasons. See section 11 of this revenue procedure. A letter ruling may be issued with a closing agreement, however, and a closing agreement is final unless fraud, malfeasance, or misrepresentation of a material fact can be shown. See section 2.02 of this revenue procedure. Letter rulings are subject to exchange of information under U.S. tax treaties or tax information exchange agreements in accordance with the terms of such treaties and agreements (including terms regarding relevancy, confidentiality, and the protection of trade secrets). Closing agreement .02 A “closing agreement” is a final agreement between the Service and a taxpayer on a specific issue or liability. It is entered into under the authority in § 7121, and it is final unless fraud, malfeasance, or misrepresentation of a material fact can be shown. A closing agreement may be entered into when it is advantageous to have a matter permanently and conclusively closed or when a taxpayer can show that there are good reasons for an agreement and that making the agreement will not prejudice the interests of the Government. A taxpayer may request a closing agreement with a letter ruling or in lieu of a letter ruling, with respect to a transaction that would be eligible for a letter ruling. If the Service agrees that a closing agreement is appropriate, the Associate Chief Counsel with subject matter jurisdiction signs the closing agreement on behalf of the Service. In appropriate cases, the Service may ask a taxpayer to enter into a closing agreement as a condition for the issuance of a letter ruling or in lieu of issuing a letter ruling. If, in a single case, a closing agreement is requested for each person or entity in a class of taxpayers, separate agreements are entered into only if the class consists of 25 or fewer taxpayers. If the issue and holding are identical for the class and there are more than 25 taxpayers in the class, Bulletin No. 2023–1 9 January 3, 2023 Determination letter a “mass closing agreement” will be entered into with the taxpayer who is authorized by the others to represent the class. .03 A “determination letter” is a written determination issued by a Director that applies the principles and precedents previously announced by the Service to a specific set of facts. It is issued only when a determination can be made based on clearly established rules in a statute, a tax treaty, the regulations, a conclusion in a revenue ruling, or an opinion or court decision that represents the position of the Service. Information letter .04 An “information letter” is a statement issued by an Associate office or Director that calls attention to a well-established interpretation or principle of tax law (including a tax treaty) without applying it to a specific set of facts. An information letter may be issued if the taxpayer’s inquiry indicates a need for general information or if the taxpayer’s request does not meet the requirements of this revenue procedure and the Service concludes that general information will help the taxpayer. An information letter is advisory only and has no binding effect on the Service. If the Associate office issues an information letter in response to a request for a letter ruling that does not meet the requirements of this revenue procedure, the information letter is not a substitute for a letter ruling. The taxpayer should provide a daytime telephone number with the taxpayer’s request for an information letter. Information letters that are issued by the Associate offices to members of the public are made available to the public. Information letters that are issued by the field offices are generally not made available to the public. Because information letters do not constitute written determinations as defined in § 6110, they are not subject to public inspection under § 6110. The Service makes the information letters available to the public under the Freedom of Information Act (the “FOIA”). Before any information letter is made available to the public, an Associate office will redact any information exempt from disclosure under the FOIA. See, e.g., 5 U.S.C. § 552(b)(6) (exemption for information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy); 5 U.S.C. § 552(b)(3) in conjunction with § 6103 (exemption for returns and return information as defined in § 6103(b)). The following documents also will not be available for public inspection as part of this process: (1) transmittal letters in which the Service furnishes publications or other publicly available material to taxpayers, without any significant legal discussion; (2) responses to taxpayer or third party contacts that are inquiries with respect to a pending request for a letter ruling, technical advice memorandum, or Chief Counsel Advice (which are subject to public inspection under § 6110 after their issuance); and (3) responses to taxpayer or third party communications with respect to any investigation, audit, litigation, or other enforcement action. Oral Advice .05 (1) No oral rulings and no written rulings in response to oral requests. The Service does not orally issue letter rulings or determination letters, nor does it issue letter rulings or determination letters in response to oral requests from taxpayers. Service employees ordinarily will discuss January 3, 2023 10 Bulletin No. 2023–1 with taxpayers or their representatives inquiries about whether the Service will rule on particular issues and about procedural matters regarding the submission of requests for letter rulings or determination letters for a particular case. (2) Discussion possible on substantive issues. At the discretion of the Service and as time permits, Service employees may also discuss substantive issues with taxpayers or their representatives. Such a discussion will not bind the Service or the Office of Chief Counsel, and it cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). Service employees who are not directly involved in the examination, appeal, or litigation of particular substantive tax issues will not discuss those issues with taxpayers or their representatives unless the discussion is coordinated with Service employees who are directly involved. The taxpayer or the taxpayer’s representative ordinarily will be asked whether an oral request for advice or information relates to a matter pending before another office of the Service or before a Federal court. If a tax issue is not under examination, in Appeals, or in litigation, the tax issue may be discussed even though the issue is affected by a nontax issue pending in litigation. A taxpayer may seek oral technical guidance from a taxpayer service representative in a field office or Service Center when preparing a return or report. The Service does not respond to letters seeking to confirm the substance of oral discussions, and the absence of a response to such a letter is not a confirmation. (3) Oral guidance is advisory only, and the Service is not bound by it. Oral guidance is advisory only, and the Service is not bound by it, for example, when examining the taxpayer’s return. SECTION 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN ADVICE UNDER THIS REVENUE PROCEDURE? Taxpayers may request letter rulings, information letters, and closing agreements under this revenue procedure on issues within the jurisdiction of the Associate offices. Taxpayers uncertain as to whether an Associate office has jurisdiction with regard to a specific factual situation may call the telephone number for the Associate office listed in section 10.07(1) of this revenue procedure. Except as provided in section 6.14 of this revenue procedure, taxpayers also may request determination letters from the Director in the appropriate operating division. See sections 7 and 12 of this revenue procedure. For determination letters from TE/GE, see Rev. Proc. 2023-4 and Rev. Proc. 2023-5, this Bulletin. Issues under the jurisdiction of the Associate Chief Counsel (Corporate) .01 Issues under the jurisdiction of the Associate Chief Counsel (Corporate) include those that involve consolidated returns, corporate acquisitions, reorganizations, liquidations, redemptions, spinoffs, transfers to controlled corporations, distributions to shareholders, corporate bankruptcies, the effect of certain ownership changes on net operating loss carryovers and other tax attributes, debt vs. equity determinations, allocation of income and deductions among taxpayers, acquisitions made to evade or avoid income tax, and certain earnings and profits questions. For information on letter rulings under § 355 involving businesses in certain development (R&D) and other activities that have not collected income see IRS Statements issued on May 6, 2019 and September 25, 2018. For information on obtaining transactional rulings under § 355 see the IRS Statement issued on March 12, 2019 that indefinitely extends the pilot program in Bulletin No. 2023–1 11 January 3, 2023 Rev. Proc. 2017-52, 2017-41 I.R.B. 283 (amplified and modified by Rev. Proc. 2018-53, 2018-43 I.R.B. 667). See the IRS Statement issued on October 13, 2017 for information regarding letter rulings involving retention of stock, drop-spin liquidate transactions, and transfers of a portion of a subsidiary’s assets to its corporate shareholder in transactions not qualifying under § 332 or § 355 but that are intended to qualify as tax-free. These IRS Statements are available at https:// www.irs.gov/newsroom/statements-from-office-of-the-chief-counsel. Issues under the jurisdiction of the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) .02 Issues under the jurisdiction of the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) include those that involve the application of employment taxes and taxes on self-employment income, exemption requirements for tax-exempt organizations, tax treatment (including application of the unrelated business income tax) of tax- exempt organizations (including federal, state, local, and Indian tribal governments), political organizations described in § 527, qualified tuition programs described in § 529, qualified ABLE programs described in § 529A, trusts described in § 4947(a), certain excise taxes, disclosure obligations and information return requirements of tax-exempt organizations, employee benefit programs (including executive compensation arrangements, qualified retirement plans, deferred compensation plans, and health and welfare benefit programs) and IRAs, issues integrally related to employee benefit programs and IRAs (such as, for example, the sale of stock to employee stock ownership plans or eligible worker-owned cooperatives under § 1042), and changes in method of accounting associated with employee benefit programs. Note that certain issues involving exempt organizations, employee plans, and government entities fall under the jurisdiction of the Commissioner, TE/GE, of the Internal Revenue Service. See Rev. Proc. 2023-4 and Rev. Proc. 2023-5, this Bulletin. Issues under the jurisdiction of the Associate Chief Counsel (Financial Institutions and Products) .03 Issues under the jurisdiction of the Associate Chief Counsel (Financial Institutions and Products) include those that involve income taxes and changes in method of accounting of banks, savings and loan associations, real estate investment trusts (REITs), regulated investment companies (RICs), real estate mortgage investment conduits (REMICs), insurance companies and products, tax-exempt obligations, mortgage credit certificates, tax credit bonds (including specified tax credit bonds), build America bonds, and financial products. For the procedures to obtain letter rulings involving tax-exempt state and local obligations, see Rev. Proc. 96-16, 1996-1 C.B. 630. Issues under the jurisdiction of the Associate Chief Counsel (Income Tax and Accounting) .04 Issues under the jurisdiction of the Associate Chief Counsel (Income Tax and Accounting) include those that involve recognition and timing of income and deductions of individuals and corporations, sales and exchanges, capital gains and losses, installment sales, equipment leasing, long-term contracts, inventories, amortization, depreciation, the alternative minimum tax, net operating losses generally, including changes in method of accounting for these issues, and accounting periods. (Note that certain issues involving individual retirement accounts (IRAs) are under the jurisdiction of the Commissioner, TE/GE. See section 4.02 of this revenue procedure). Issues under the jurisdiction of the Associate Chief Counsel (International) .05 Issues under the jurisdiction of the Associate Chief Counsel (International) include the tax treatment of nonresident aliens and foreign corporations, withholding of tax on nonresident aliens and foreign corporations, foreign tax credit, determination of sources of income, income from sources outside the United States, subpart F questions, domestic international sales corporations (DISCs), foreign sales corporations (FSCs), exclusions under § 114 for extraterritorial income (ETI), international boycott determinations, treatment of certain passive foreign investment companies, income affected by treaty, U.S. possessions, and other matters relating to the activities of non-U.S. persons within the United States or U.S.-related persons outside the United States, and changes in method of accounting for these persons. January 3, 2023 12 Bulletin No. 2023–1 For the procedures to obtain advance pricing agreements under § 482, see Rev. Proc. 2015-41, 2015-35 I.R.B. 263. For competent authority procedures related to bilateral and multilateral advance pricing agreements, see Rev. Proc. 2015-40, 2015-35 I.R.B. 236. Issues under the jurisdiction of the Associate Chief Counsel (Passthroughs and Special Industries) .06 Issues under the jurisdiction of the Associate Chief Counsel (Passthroughs and Special Industries) include those that involve income taxes of S corporations (except accounting periods and methods) and certain noncorporate taxpayers (including partnerships, common trust funds, and trusts), entity classification, estate (excluding § 6166), gift, generation-skipping transfer, and certain excise taxes, depletion, and other engineering issues, cooperative housing corporations, farmers’ cooperatives under § 521, the low-income housing credit under § 42, the New Markets Tax Credit under § 45D, the rehabilitation credit under § 47, disabled access credit, qualified electric vehicle credits, research and experimental expenditures, shipowners’ protection and indemnity associations under § 526, and certain homeowners associations under § 528. Issues under the jurisdiction of the Associate Chief Counsel (Procedure and Administration) .07 Issues under the jurisdiction of the Associate Chief Counsel (Procedure and Administration) include those that involve Federal tax procedure and administration, disclosure and privacy law, reporting and paying taxes (including payment of taxes under § 6166), assessing and collecting taxes (including interest and penalties), abating, crediting, or refunding overassessments or overpayments of tax, and filing information returns. SECTION 4. ON WHAT ISSUES MUST WRITTEN ADVICE BE REQUESTED UNDER DIFFERENT PROCEDURES? Issues involving alcohol, tobacco, and firearms taxes .01 The procedures for obtaining letter rulings, closing agreements, determination letters, information letters, and oral advice that apply to Federal alcohol, tobacco, and firearms taxes under subtitle E of the Code are under the jurisdiction of the Alcohol and Tobacco Tax and Trade Bureau of the Department of the Treasury. Certain issues involving qualified retirement plans, individual retirement accounts (IRAs), and exempt organizations .02 The procedures for obtaining certain letter rulings, closing agreements, determination letters, information letters, and oral advice on qualified retirement plans and IRAs that are under the jurisdiction of the Commissioner, TE/GE, are provided in Rev. Proc. 2023-4, this Bulletin. Rev. Proc. 2023-4 also includes the procedures for issuing determination letters on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans under §§ 401, 403(a), 409, and 4975(e)(7), and the status for exemption of any related trusts or custodial accounts under § 501(a). See also Rev. Proc. 2023-5, this Bulletin, for the procedures for issuing determination letters on the tax-exempt status of organizations under § 501 and § 521, the foundation status of organizations described in § 501(c)(3) and the foundation status of nonexempt charitable trusts described in § 4947(a)(1). For the user fee requirements applicable to requests under the jurisdiction of the Commissioner, TE/GE, see Section 30 of Rev. Proc. 2023-4, and Section 14 of Rev. Proc. 2023-5. SECTION 5. UNDER WHAT CIRCUMSTANCES DO THE ASSOCIATE OFFICES ISSUE LETTER RULINGS? Bulletin No. 2023–1 13 January 3, 2023 In income and gift tax matters . 01 In income and gift tax matters, an Associate office generally issues a letter ruling on a proposed transaction or on a completed transaction if the letter ruling request is submitted before a return containing a tax position on the completed transaction is filed. An Associate office will not ordinarily issue a letter ruling on a completed transaction if the letter ruling request is submitted after a return containing a tax position on the completed transaction is filed. “Not ordinarily” means that unique and compelling reasons must be demonstrated to justify the issuance of a letter ruling submitted after the return is filed for the year in which the transaction is completed. The taxpayer must contact the field office having audit jurisdiction over their return and obtain the field’s consent to the issuance of such a letter ruling. See section 7.05(2) of this revenue procedure. Special relief for late S corporation and related elections in lieu of letter ruling process .02 In lieu of requesting a letter ruling under this revenue procedure, a taxpayer may obtain relief for certain late S corporation and related elections by following the procedure in Rev. Proc. 2013-30, 2013-36 I.R.B. 173. This procedure is in lieu of the letter ruling process and does not require payment of any user fee. See section 3.01 of Rev. Proc. 2013-30, and section 15.03(3) of this revenue procedure. A § 301.9100 request for extension of time for making an election or for other relief .03 An Associate office will consider a request for an extension of time for making an election or other application for relief under § 301.9100-3 of the Treasury Regulations, even if submitted after the return covering the issue presented in the § 301.9100 request has been filed, an examination of the return has begun, the issues in the return are being considered by Appeals or a Federal court, or the liability reflected on the return has been assessed and subject to collection. Except for certain requests pertaining to applications for recognition of tax exemption under the jurisdiction of the Commissioner, TE/GE, a § 301.9100 request is a letter ruling request. Therefore, the § 301.9100 request should be submitted pursuant to this revenue procedure. However, a § 301.9100 request involving recharacterization of an IRA (see § 1.408A-5, Q&A-6) should be submitted pursuant to Rev. Proc. 2023-4, this Bulletin. An election made pursuant to § 301.9100-2 for an automatic extension of time is not a letter ruling request and does not require payment of any user fee. See § 301.9100-2(d) and section 15.03(1) of this revenue procedure. (1) Format of request. A § 301.9100 request (other than an election made pursuant to § 301.9100-2 and certain requests pertaining to applications for recognition of tax exemption under the jurisdiction of the Commissioner, TE/GE which are addressed in Rev. Proc. 2023-5) must be in the general form of, and meet the general requirements for, a letter ruling request. These requirements are given in section 7 of this revenue procedure. A § 301.9100 request must include an affidavit and declaration from the taxpayer and other parties having knowledge or information about the events that led to the failure to make a valid regulatory election and to the discovery of the failure. See § 301.9100-3(e)(2) and (e)(3). In addition, a § 301.9100 request must include the information required by § 301.9100-3(e)(4). (2) Period of limitation. The filing of a request for relief under § 301.9100 does not suspend the running of any applicable period of limitation. See § 301.9100-3(d)(2). The Associate office ordinarily will not issue a § 301.9100 ruling if the period of limitation on assessment under § 6501(a) for the taxable year in which an election should have been made, or for any taxable years that would have been affected by the election had it been timely made, will expire before receipt of a § 301.9100 letter ruling. See § 301.9100-3(c)(1)(ii). If, however, the taxpayer consents to extend the period of limitation on assessment under § 6501(c)(4) for the taxable year in which the election should have been made and for any taxable years that would have been affected by the election had it been timely made, the Associate office may issue the letter ruling. See § 301.9100-3(d)(2). Note that the filing of a claim for refund under § 6511 does not extend the period of limitation on assessment. If § 301.9100-3 relief is granted, the Associate office may require the taxpayer to consent to an extension of the period of limitation on assessment. See § 301.9100-3(d)(2). January 3, 2023 14 Bulletin No. 2023–1 (3) Taxpayer must notify the Associate office if examination of its return begins while the request is pending. The taxpayer must notify the Associate office if the Service begins an examination of the taxpayer’s return for the taxable year in which an election should have been made, or for any taxable years that would have been affected by the election had it been timely made, while a § 301.9100-3 request is pending. This notification must include the name and telephone number of the examining agent. See § 301.9100-3(e)(4)(i) and section 7.05(1)(b) of this revenue procedure. (4) Associate office will notify examination agent, Appeals officer, or attorney of a § 301.9100 request if the taxpayer’s return is being examined by a field office or is being considered by an Appeals office or a Federal court. If the taxpayer’s return for the taxable year in which an election should have been made, or for any taxable years that would have been affected by the election had it been timely made, is being examined by a field office or considered by an Appeals office or a Federal court, the Associate office will notify the appropriate examination agent, Appeals officer, or attorney that a § 301.9100 request has been submitted to the Associate office. The examination agent, Appeals officer, or attorney is not authorized to deny consideration of a § 301.9100 request. The letter ruling will be mailed to the taxpayer and a copy will be sent to the Appeals officer, attorney, or appropriate Service official in the operating division that has examination jurisdiction over the taxpayer’s tax return. (5) Inclusion of statement required by section 4.04 of Rev. Proc. 2009-41. Eligible entities requesting a letter ruling because they do not meet all of the eligibility requirements of section 4.01 of Rev. Proc. 2009-41, 2009-39 I.R.B. 439, must include either the following representation as part of the entity’s request for a letter ruling or an explanation regarding why they do not qualify to do so: “All required U.S. tax and information returns of the entity (or, if the entity was not required to file any such returns under the desired classification, then all required U.S. tax and information returns of each affected person as defined in Section 4.02 of Rev. Proc. 2009-41) were filed timely or within 6 months of the due date of the respective return (excluding extensions) as if the entity classification election had been in effect on the requested date. No U.S. tax or information returns were filed inconsistently with those described in the prior sentence.” (6) Relief for late classification election. In lieu of requesting a letter ruling under § 301.9100- 1 through § 301.9100-3 and this revenue procedure, entities that satisfy the requirements set forth in section 4.01 of Rev. Proc. 2009-41, 2009-39 I.R.B. 439, may apply for late classification election relief under Rev. Proc. 2009-41. Requests for such relief are not subject to user fees. See section 3.01 of Rev. Proc. 2009-41 and section 15.03(2) of this revenue procedure. Determinations under § 999(d) .04 As provided in Rev. Proc. 77-9, 1977-1 C.B. 542, the Associate Chief Counsel (International) issues determinations under § 999(d) that a particular operation of a person, or of a member of a controlled group (within the meaning of § 993(a)(3)) that includes that person, or a foreign corporation of which a member of the controlled group is a U.S. shareholder, constitutes participation in or cooperation with an international boycott. The effect of that determination is to deny certain benefits of the foreign tax credit and the deferral of earnings of foreign subsidiaries and domestic international sales corporations (DISCs) to that person. The same principles shall apply with respect to exclusions under § 114 for exterritorial income (ETI). Requests for determinations under Rev. Proc. 77-9 are letter ruling requests and should be submitted to the Associate office pursuant to this revenue procedure. In matters involving § 367 .05 Unless the issue is covered by section 6 of this revenue procedure, the Associate Chief Counsel (International) may issue a letter ruling under § 367 even if the taxpayer does not request a letter ruling as to the characterization of the transaction under the reorganization provisions of the Code. The Associate office will determine the § 367 consequences of a transaction but may indicate in the letter ruling that it expresses no opinion as to the characterization of the transaction under the reorganization. The Associate office may decline to issue a § 367 ruling in situations Bulletin No. 2023–1 15 January 3, 2023 In estate tax matters in which the taxpayer inappropriately characterizes the transaction under the reorganization provisions. .06 In general, the Associate Chief Counsel (Passthroughs and Special Industries) issues letter rulings on transactions affecting the estate tax on the prospective estate of a living person. The Associate office will not issue letter rulings for prospective estates on computations of tax, actuarial factors, or factual matters. With respect to the transactions affecting the estate tax of the decedent’s estate, generally the Associate office issues letter rulings before the decedent’s estate tax return is filed. If the taxpayer is requesting a letter ruling regarding a decedent’s estate tax and the estate tax return is due to be filed before the letter ruling is expected to be issued, the taxpayer should obtain an extension of time for filing the return and should notify the Associate office branch considering the letter ruling request that an extension has been obtained. If the return is filed before the letter ruling is received from the Associate office, the taxpayer must disclose on the return that a letter ruling has been requested, attach a copy of the pending letter ruling request to the return, and notify the Associate office that the return has been filed. See section 7.05(2) of this revenue procedure. The Associate office will make every effort to issue the letter ruling within 3 months of the date the return was filed. If the taxpayer requests a letter ruling after the return is filed, but before the return is examined, the taxpayer must notify the field office having jurisdiction over the return that a letter ruling has been requested, attach a copy of the pending letter ruling request, and notify the Associate office that a return has been filed. See section 7.05(2) of this revenue procedure. The Associate office will make every effort to issue the letter ruling within 3 months of the date the return has been filed. If the letter ruling cannot be issued within that 3-month period, the Associate office will notify the field office having jurisdiction over the return, which may, by memorandum to the Associate office, grant an additional period for the issuance of the letter ruling. In matters involving additional estate tax under § 2032A(c) .07 In matters involving additional estate tax under § 2032A(c), the Associate Chief Counsel (Passthroughs and Special Industries) issues letter rulings on proposed transactions and on completed transactions that occurred before the return is filed. In matters involving qualified domestic trusts under § 2056A .08 In matters involving qualified domestic trusts under § 2056A, the Associate Chief Counsel (Passthroughs and Special Industries) issues letter rulings on proposed transactions and on completed transactions that occurred before the return is filed. In generation-skipping transfer tax matters .09 In general, the Associate Chief Counsel (Passthroughs and Special Industries) issues letter rulings on proposed transactions that affect the generation-skipping transfer tax and on completed transactions that occurred before the return is filed. In the case of a generation-skipping trust or trust equivalent, letter rulings are issued either before or after the trust or trust equivalent has been established. In employment and excise tax matters .10 In employment and excise tax matters, the Associate offices issue letter rulings on proposed transactions and on completed transactions, if the letter ruling request is submitted before the return is filed for the year in which the transaction is completed. January 3, 2023 16 Bulletin No. 2023–1 Letter ruling requests regarding employment status (employer/employee relationship) from Federal agencies and instrumentalities or their workers must be submitted to the Internal Revenue Service as set forth in the current instructions for Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding. If the Federal agency or instrumentality service recipient (the firm) makes the request, the firm will receive any issued letter ruling. A copy will also be sent to any identified workers. If the worker makes the request and the firm has been contacted for information, both the worker and the firm will receive any issued letter ruling. The letter ruling will apply to any individuals engaged by the firm under substantially similar circumstances. See section 12.04 of this revenue procedure for requests regarding employment status made by taxpayers other than Federal agencies and instrumentalities or their workers. .11 The Associate Chief Counsel (Procedure and Administration) issues letter rulings on matters arising under the Code and related statutes and regulations that involve the time, place, manner, and procedures for reporting and paying taxes; or the filing of information returns. In procedural and administrative matters In Indian tribal government matters .12 Pursuant to Rev. Proc. 84-37, 1984-1 C.B. 513, as modified by Rev. Proc. 86-17, 1986-1 C.B. 550, and this revenue procedure, the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) issues determinations recognizing a tribal entity as an Indian tribal government within the meaning of § 7701(a)(40) or as a political subdivision of an Indian tribal government under § 7871(d) if it determines, after consultation with the Secretary of the Interior, that the entity satisfies the statutory definition of an Indian tribal government or has been delegated governmental functions of an Indian tribal government. Requests for determinations under Rev. Proc. 84-37 are letter ruling requests, and, therefore, should be submitted to the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) pursuant to this revenue procedure. (1) Definition of Indian tribal government. The term “Indian tribal government” is defined under § 7701(a)(40) to mean the governing body of any tribe, band, community, village, or group of Indians, or (if applicable) Alaska Natives, which is determined by the Secretary of the Treasury, after consultation with the Secretary of the Interior, to exercise governmental functions. Section 7871(d) provides that, for purposes of § 7871(a), a subdivision of an Indian tribal government shall be treated as a political subdivision of a state if the Secretary of the Treasury determines, after consultation with the Secretary of the Interior, that the subdivision has been delegated the right to exercise one or more of the substantial governmental functions of the Indian tribal government. (2) Inclusion in list of tribal governments. Rev. Proc. 2008-55, 2008-2 C.B. 768, designates the Indian tribal entities that appear on the current or future lists of federally recognized Indian tribes published annually by the Department of the Interior, Bureau of Indian Affairs, as Indian tribal governments that are treated similarly to states for certain Federal tax purposes. Rev. Proc. 84-36, 1984-1 C.B. 510, as modified by Rev. Proc. 86-17, 1986-1 C.B. 550, provides a list of political subdivisions of Indian tribal governments that are treated as political subdivisions of states for certain Federal tax purposes. Under Rev. Proc. 84-37, as modified by Rev. Proc. 86-17, tribal governments or subdivisions recognized under § 7701(a)(40) or § 7871(d) will be included in the list of recognized tribal government entities in future lists of federally recognized Indian tribes published annually by the Department of the Interior, Bureau of Indian Affairs, or revised versions of Rev. Proc. 84-36. On constructive sales price under § 4216(b) or § 4218(c) .13 The Associate Chief Counsel (Passthroughs and Special Industries) will issue letter rulings in all cases on the determination of a constructive sales price under § 4216(b) or § 4218(c) and in all other cases on prospective transactions if the law or regulations require a determination of the effect of a proposed transaction for Federal tax purposes. See section 6.14(5) of this revenue procedure. Bulletin No. 2023–1 17 January 3, 2023 In exempt organizations matters .14 In exempt organizations matters, the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) generally issues letter rulings on proposed transactions or on completed transactions if the letter ruling request is submitted before the return is filed for the year in which the transaction is completed. The Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) will not ordinarily issue a letter ruling on a completed transaction if the letter ruling request is submitted after the return is filed for the year in which the transaction is completed. “Not ordinarily” means that unique and compelling reasons must be demonstrated to justify the issuance of a letter ruling submitted after the return is filed for the year in which the transaction is completed. The taxpayer must contact the field office having audit jurisdiction over their return and obtain the field’s consent to the issuance of such a letter ruling. See Rev. Proc. 2023-5, this Bulletin, for the procedures for issuing determination letters on issues under the jurisdiction of the Director Exempt Organizations Rulings and Agreements, including determination letters on the tax-exempt status of organizations under § 501 and § 521, the foundation status of organizations described in § 501(c)(3), and the foundation status of nonexempt charitable trusts described in § 4947(a)(1). In qualified retirement plan and IRA matters .15 In qualified retirement plan and IRA matters (other than those listed in Rev. Proc. 2023- 4, this Bulletin), the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) will generally issue letter rulings on proposed transactions and on completed transactions, if the letter ruling request is submitted before the return is filed for the year in which the transaction is completed, including those involving: (1) §§ 72 (other than the computation of the exclusion ratio), 219, 381(c)(11), 402, 403(b) (except with respect to whether the form of a plan satisfies the requirements of § 403(b) as provided in Rev. Proc. 2023-4), 404, 408, 408A, 412, 414(e) and (h), 511 through 514, 4971(b) and (g), 4972, 4973, 4974 (other than requests for a waiver under § 4974(d)), 4978, 4979, and 4980; (2) Waiver of the minimum funding standard (see Rev. Proc. 2004-15, 2004-1 C.B. 490, section 3.04 of which is modified by Rev. Proc. 2023-4); (3) Whether a plan amendment is reasonable and provides for only de minimis increases in plan liabilities in accordance with §§ 401(a)(33) and 412(c)(7)(B)(i) of the Code (see Rev. Proc. 79-62, 1979-2 C.B. 576); (4) With respect to employee stock ownership plans and tax credit employee stock ownership plans, §§ 409, 1042, 4975(d)(3) and 4975(e)(7). Qualification issues arising under these sections (as well as under §§ 401-420 generally) are generally within the jurisdiction of Employee Plans Determinations. However, see Rev. Proc. 2023-3, this Bulletin, section 4.02(12); (5) Abatement of first tier excise taxes under § 4962; (6) Relief under § 301.9100-1 that is not related to Roth IRA recharacterizations; and (7) Grants of extensions of time other than pursuant to § 301.9100-1. A request to revoke an election .16 If a taxpayer is required to file a letter ruling request to obtain consent to revoke an election made on a return, an Associate office will consider the request, even if an examination of the return has begun or the issues in the return are being considered by Appeals or a Federal court. January 3, 2023 18 Bulletin No. 2023–1 Under some circumstances before the issuance of a regulation or other published guidance The procedures in this revenue procedure applicable to a § 301.9100 request (including the user fee requirements for such a request, see generally section 15 of this revenue procedure) apply to a letter ruling request to revoke the election. .17 In general, the Service will not issue a letter ruling or determination letter on an issue that it cannot readily resolve before the promulgation of a regulation or other published guidance. See section 6.09 of this revenue procedure. However, an Associate office may issue letter rulings under the following conditions: (1) Answer is clear or is reasonably certain. If the letter ruling request presents an issue for which the answer seems clear by applying the statute, regulations, and applicable case law to the facts or for which the answer seems reasonably certain but not entirely free from doubt. (2) Answer is not reasonably certain. If the letter ruling request presents an issue for which the answer does not seem reasonably certain, the Associate office may issue the letter ruling, using its best efforts to arrive at a determination, if it is in the best interest of tax administration. SECTION 6. UNDER WHAT CIRCUMSTANCES DOES THE SERVICE NOT ISSUE LETTER RULINGS OR DETERMINATION LETTERS? Ordinarily not if the request involves an issue under examination or consideration or in litigation .01 The Service ordinarily does not issue a letter ruling or a determination letter if, at the time of the request, the identical issue is involved in the taxpayer’s return for an earlier period and that issue— (1) is being examined by a field office; (2) is being considered by Appeals; (3) is pending in litigation in a case involving the taxpayer or a related party; (4) has been examined by a field office or considered by Appeals and the statutory period of limitations on assessment or on filing a claim for refund or credit of tax has not expired; or (5) has been examined by a field office or considered by Appeals and a closing agreement covering the issue or liability has not been entered into by a field office or by Appeals. If a return dealing with an issue for a particular year is filed while a request for a letter ruling on that issue is pending, an Associate office will issue the letter ruling unless it is notified by the taxpayer or otherwise learns that an examination of that issue or the identical issue on an earlier year’s return has been started by a field office. See section 7.05 of this revenue procedure. In income and gift tax matters, as well as in qualified retirement plan, IRA, and exempt organizations matters, even if an examination has begun, an Associate office ordinarily will issue the letter ruling if the field office agrees by memorandum to the issuance of the letter ruling. Bulletin No. 2023–1 19 January 3, 2023 Ordinarily not in certain areas because of factual nature of the problem or for other reasons .02 The Service ordinarily does not issue letter rulings or determination letters in certain areas because of the factual nature of the matter involved or for other reasons. Rev. Proc. 2023-3 and Rev. Proc. 2023-7, this Bulletin, provide a list of these areas. This list is not all-inclusive because the Service may decline to issue a letter ruling or a determination letter when appropriate in the interest of sound tax administration, including due to resource constraints, or on other grounds whenever warranted by the facts or circumstances of a particular case. Instead of issuing a letter ruling or determination letter, the Service may, when it is considered appropriate and in the interest of sound tax administration, issue an information letter calling attention to well-established principles of tax law. If the Service determines that it is not in the interest of sound tax administration to issue a letter ruling or determination letter due to resource constraints, it will adopt a consistent approach with respect to taxpayers that request a ruling on the same issue. The Service will also consider adding the issue to the no rule list at the first opportunity. See sections 2.01 and 3.02 of Rev. Proc. 2023-3. Ordinarily not on part of an integrated transaction .03 (1) General rule. An Associate office ordinarily will not issue a letter ruling on only part of an integrated transaction. If a part of a transaction falls under a no-rule area, a letter ruling on other parts of the transaction may be issued. Before preparing the letter ruling request, a taxpayer should call a branch having jurisdiction for the matters on which the taxpayer is seeking a letter ruling to discuss whether the Associate office will issue a letter ruling on part of the transaction. Significant issue ruling. (a) No rule areas. The Service will not rule on the qualification of any transaction under § 332, § 351, or § 1036, or (except as provided in paragraph (b) of this section 6.03(2)) on whether a transaction constitutes a reorganization within the meaning of § 368 (other than under either § 368(a)(1)(D) and § 355 or § 368(a)(1)(G) and § 355), regardless of whether such transaction is part of an integrated transaction (see section 3.01(60) of Rev. Proc. 2023-3, this Bulletin). Instead, the Associate Chief Counsel (Corporate) will only issue a letter ruling on significant issues (within the meaning of section 3.01(60) of Rev. Proc. 2023-3) presented in a transaction described in § 332, § 351, § 368 (other than under § 368(a)(1)(D) and § 355 or § 368(a)(1)(D) and § 355), or § 1036. For example, the Service may rule on significant issues under § 1.368-1(d) (continuity of business enterprise) and § 1.368-1(e) (continuity of interest). Letter rulings requested under this section 6.03(2)(a) are subject to the no-rule policies of Rev. Proc. 2023-3. (b) Section 355 distributions and related transactions. Pursuant to section 4 of Rev. Proc. 2017-52, 2017-41 I.R.B. 283 (amplified and modified by Rev. Proc. 2018-53, 2018-43 I.R.B. 667), in lieu of requesting a Transactional Ruling regarding a Covered Transaction, a taxpayer may request a Significant Issue Ruling. Letter rulings requested under this section 6.03(2)(b) are subject to the policies of Rev. Proc. 2023-3. However, the Service will not rule on any aspect of a Covered Transaction, including any significant issue, if section 5.01(3) of Rev. Proc. 2023-3 applies, and the Service will ordinarily not rule on any aspect of a Covered Transaction, including any significant issue, if section 4.01(30) of Rev. Proc. 2023-3 applies. Submission requirements. Before preparing a letter ruling request under section 6.03(2) of this revenue procedure involving significant issues presented in a transaction described in § 332, § 351, § 355, § 368, or § 1036, the taxpayer is encouraged to call the Office of Associate Chief Counsel (Corporate) at the telephone number provided in section 10.07(1)(a) of this revenue procedure to discuss whether the Service will entertain a letter ruling request under section 6.03(2). The Service reserves the right to rule on any other aspect of the transaction (including ruling adversely) to the extent the Service believes it is in the best interests of tax administration. Cf. section 2.01 of Rev. Proc. 2023-3. January 3, 2023 20 Bulletin No. 2023–1 The taxpayer may request rulings on one or more significant issues in a single letter ruling request. Letter ruling requests under section 6.03(2) must include the following for each significant issue: (a) A narrative description of the transaction that puts the issue in context; (b) A statement identifying the issue; (c) An analysis of the relevant law, which should set forth the authorities most closely related to the issue and explain why these authorities do not resolve the issue, and an explanation concerning why the issue is significant within the meaning of section 3.01(60) of Rev. Proc. 2023-3; and (d) The precise ruling(s) requested. The taxpayer should consult other published authorities (see, for example, Appendix F of this revenue procedure, which identifies certain checklist and guideline revenue procedures including Rev. Proc. 2017-52, 2017-41 I.R.B. 283, and Rev. Proc. 2018-53, 2018-43 I.R.B. 667, to identify representations, information, and analysis that may be required.) If the Service issues a letter ruling on a significant issue under section 6.03(2), then the letter ruling will state that no opinion is expressed as to any issue or step not specifically addressed by the letter. In addition, letter rulings issued under section 6.03(2) will contain the following (or similar) language: This letter is issued pursuant to section 6.03(2) of Rev. Proc. 2023-1, 2023-1 I.R.B. 1, regarding one or more significant issues under § 332, § 351, § 355, § 368, or § 1036. The ruling[s] contained in this letter only address[es] one or more significant issues involved in the transaction. This Office expresses no opinion as to the overall tax consequences of the transactions described in this letter or as to any issue not specifically addressed by the ruling[s] below. Ordinarily not on which of two entities is a common law employer Ordinarily not to business associations or groups .04 The Service ordinarily does not issue a letter ruling or a determination letter on which of two entities, under common law rules applicable in determining the employer-employee relationship, is the employer, when one entity is treating the worker as an employee. .05 The Service ordinarily does not issue letter rulings or determination letters to business, trade, or industrial associations or to similar groups concerning the application of the tax laws to members of the group. Groups and associations, however, may submit suggestions of generic issues that could be appropriately addressed in revenue rulings. See Rev. Proc. 89-14, 1989-1 C.B. 814, which states the objectives of, and standards for, the publication of revenue rulings and revenue procedures in the Internal Revenue Bulletin. See also Rev. Proc. 2016-19, 2016-13 I.R.B. 497, which describes procedures for taxpayers and other entities to submit issues for consideration under the Service’s Industry Issue Resolution (IIR) Program. The Service may issue letter rulings or determination letters to groups or associations on their own tax status or liability if the request meets the requirements of this revenue procedure. Bulletin No. 2023–1 21 January 3, 2023 Ordinarily not where the request does not address the tax status, liability, or reporting obligations of the requester .06 The Service ordinarily does not issue letter rulings or determination letters regarding the tax consequences of a transaction for taxpayers who are not directly involved in the request if the requested letter ruling or determination letter would not address the tax status, liability, or reporting obligations of the requester. For example, a taxpayer may not request a letter ruling relating to the tax consequences of a transaction to a customer or client, if the tax status, liability, or reporting obligations of the taxpayer would not be addressed in the ruling, because the customer or client is not directly involved in the letter ruling request. The tax liability of each shareholder is, however, directly involved in a letter ruling on the reorganization of a corporation. Accordingly, a corporate taxpayer could request a letter ruling that solely addressed the tax consequences to its shareholders of a proposed reorganization. Rev. Proc. 96-16, 1996-1 C.B. 630, sets forth rules for letter ruling requests involving tax- exempt state and local government obligations. Ordinarily not to foreign governments .07 The Service ordinarily does not issue letter rulings or determination letters to foreign governments or their political subdivisions about the U.S. tax effects of their laws. The Associate offices also do not issue letter rulings on the effect of a tax treaty on the tax laws of a treaty country for purposes of determining the tax of the treaty country. See section 13.02 of Rev. Proc. 2015- 40, 2015-35 I.R.B. 236. Treaty partners can continue to address matters such as these under the provisions of the applicable tax treaty. In addition, the Associate offices may issue letter rulings to foreign governments or their political subdivisions on their own tax status or liability under U.S. law if the request meets the requirements of this revenue procedure. Ordinarily not on Federal tax consequences of proposed legislation .08 The Associate offices ordinarily do not issue letter rulings on a matter involving the Federal tax consequences of any proposed Federal, state, local, municipal, or foreign legislation. The Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) may issue letter rulings regarding the effect of proposed state, local, or municipal legislation upon an eligible deferred compensation plan under § 457(b) provided that the letter ruling request relating to the plan complies with the other requirements of this revenue procedure. The Associate offices also may provide general information in response to an inquiry. Ordinarily not before issuance of a regulation or other published guidance .09 Generally, the Service will not issue a letter ruling or a determination letter if the request presents an issue that cannot be readily resolved before a regulation or any other published guidance is issued. When the Service has closed a regulation project or any other published guidance project that might have answered the issue or decided not to open a regulation project or any other published guidance project, the Associate offices may consider all letter ruling requests unless the issue is covered by section 6 of this revenue procedure, Rev. Proc. 2023-3 or Rev. Proc. 2023-7, this Bulletin. Not on frivolous issues .10 The Service will not issue a letter ruling or a determination letter on frivolous issues. A “frivolous issue” is one without basis in fact or law or one that asserts a position that courts have held frivolous or groundless. Examples of frivolous or groundless issues include, but are not limited to: (1) frivolous “constitutional” claims, such as claims that the requirement to file tax returns and pay taxes constitutes an unreasonable search barred by the Fourth Amendment, violates Fifth and Fourteenth Amendment protections of due process, violates Thirteenth Amendment protections against involuntary servitude, or is unenforceable because the Sixteenth Amendment does not authorize nonapportioned direct taxes or was never ratified; (2) claims that income taxes are voluntary, that the term “income” is not defined in the Internal Revenue Code, or that preparation and filing of Federal income tax returns violates the Paperwork Reduction Act; January 3, 2023 22 Bulletin No. 2023–1 (3) claims that tax may be imposed only on coins minted under a gold or silver standard or that receipt of Federal Reserve Notes does not cause an accretion to wealth; (4) claims that a person’s income is not taxable because he or she falls within a class entitled to “reparation claims” or an extra-statutory class of individuals exempt from tax, e.g., “free-born” individuals; (5) claims that a taxpayer can refuse to pay taxes on the basis of opposition to certain Governmental expenditures; (6) claims that taxes apply only to Federal employees; only to residents of Puerto Rico, Guam, the U.S. Virgin Islands, the District of Columbia, or “Federal enclaves;” or that §§ 861 through 865 or any other provision of the Code imposes taxes on U.S. citizens and residents only on income derived from foreign based activities; (7) claims that wages or personal service income are “not income,” are “nontaxable receipts,” or are a “nontaxable exchange for labor;” (8) claims that income tax withholding by an employer on wages is optional; or (9) other claims that the courts have characterized as frivolous or groundless. Additional examples of frivolous or groundless issues may be found in IRS publications and other guidance (including, but not limited to, Notice 2010-33, Frivolous Positions, and I.R.M. Exhibit 25.25.10-1, Frivolous Arguments). No “comfort” letter rulings .11 Except with respect to a Covered Transaction within the meaning of Rev. Proc. 2017-52, 2017-41 I.R.B. 283 (amplified and modified by Rev. Proc. 2018-53, 2018-43 I.R.B. 667), a letter ruling will not be issued with respect to an issue that is clearly and adequately addressed by a statute, regulation, or court decision; or revenue rulings, revenue procedures, notices, or other authorities published in the Internal Revenue Bulletin (Comfort Ruling). However, except with respect to issues under § 332, § 351, § 368, or § 1036 and the tax consequences resulting from the application of such Code sections (see generally section 6.03(2) of this revenue procedure), the Associate office may, in its discretion, decide to issue a Comfort Ruling if an Associate office is otherwise issuing a letter ruling to the taxpayer on another issue arising in the same transaction. Not on alternative plans or hypothetical situations Not on property conversion after return filed .12 The Service will not issue a letter ruling or a determination letter on alternative plans of proposed transactions or on hypothetical situations. .13 An Associate office will not issue a letter ruling on the replacement of involuntarily converted property, whether or not the property has been replaced, if the taxpayer has already filed a Federal tax return for the first taxable year in which any of the gain was realized from the converted property. A Director may issue a determination letter in this case. See section 12.01 of this revenue procedure. Circumstances under which determination letters are not issued by a Director .14 A Director will not issue a determination letter if— (1) the taxpayer has directed a similar inquiry to an Associate office; Bulletin No. 2023–1 23 January 3, 2023 (2) the same issue, involving the same taxpayer or a related party, is pending in a case in litigation or before Appeals; (3) the request involves an industry-wide problem; (4) the specific employment tax question at issue in the request has been, or is being, considered by the Central Office of the Social Security Administration or the Railroad Retirement Board for the same taxpayer or a related party; or (5) the request is for a determination of constructive sales price under § 4216(b) or § 4218(c), which deal with special provisions applicable to the manufacturers excise tax. The Associate Chief Counsel (Passthroughs and Special Industries) will, in certain circumstances, issue letter rulings in this area. See section 5.13 of this revenue procedure. SECTION 7. WHAT ARE THE GENERAL INSTRUCTIONS FOR REQUESTING LETTER RULINGS AND DETERMINATION LETTERS? This section provides the general instructions for requesting letter rulings and determination letters. See section 9 of this revenue procedure for the specific and additional procedures for requesting a change in method of accounting. Requests for letter rulings, closing agreements, and determination letters require the payment of the applicable user fee listed in Appendix A of this revenue procedure. Certain changes in method of accounting under the automatic change request procedures (see section 9.01(1) of this revenue procedure) and certain changes in accounting periods made under automatic change request procedures do not require payment of a user fee (see Appendix F of this revenue procedure). For additional user fee requirements, see section 15 of this revenue procedure. Specific and additional instructions also apply to requests for letter rulings and determination letters on certain matters. Those matters are listed in Appendix F of this revenue procedure with a reference (usually to another revenue procedure) where more information can be obtained. Documents and information required in all requests Facts .01 (1) Complete statement of facts and other information. Each request for a letter ruling or a determination letter must contain a complete statement of all facts relating to the transaction. These facts include— (a) names, taxpayer identification numbers, addresses, telephone numbers, and other contact information as appropriate (such as fax numbers or email addresses of any party requesting to communicate with the Service in such a form, see section 7.02(5) of this revenue procedure) of all interested parties (the term “all interested parties” does not include all shareholders of a widely held corporation requesting a letter ruling relating to a reorganization or all employees where a large number may be involved); (b) the annual accounting period, and the overall method of accounting (cash or accrual) for maintaining the accounting books and filing the Federal income tax return, of all interested parties; (c) a description of the taxpayer’s business operations; (d) a complete statement of the business reasons for the transaction; January 3, 2023 24 Bulletin No. 2023–1 (e) a detailed description of the transaction; and (f) all other facts relating to the transaction or to the taxpayer’s requested tax treatment thereof. Documents and foreign laws (2) Copies of all contracts, wills, deeds, agreements, instruments, other documents pertinent to the transaction, and foreign laws. (a) Documents. True copies of all contracts, wills, deeds, agreements, instruments, trust documents, proposed disclaimers, and other documents pertinent to the transactions must be submitted with the request. But see sections 3.02 and 4 of Rev. Proc. 2017-52, 2017-41 I.R.B. 283 (amplified and modified by Rev. Proc. 2018-53, 2018-43 I.R.B. 667), for requirements relating to ruling requests under § 355, and section 3.04 of Rev. Proc. 2018-53, 2018-43 I.R.B. 667, for requirements relating to ruling requests involving assumption or satisfaction of the distributing corporation’s debt in connection with § 355 distributions. If the request concerns a corporate distribution, reorganization, or similar transaction, the corporate balance sheet and profit and loss statement should also be submitted. But see sections 3.02 and 4 of Rev. Proc. 2017-52 for requirements relating to ruling requests under § 355. If the request relates to a prospective transaction, the most recent balance sheet and profit and loss statement should be submitted. But see sections 3.02 and 4 of Rev. Proc. 2017-52 (amplified and modified by Rev. Proc. 2018-53) for requirements relating to ruling requests under § 355. If any document, including any balance sheet and profit and loss statement, is in a language other than English, the taxpayer must also submit a certified English translation of the document, along with a true copy of the document. For guidelines on the acceptability of such documents, see paragraph (c) of this section 7.01(2). Each document other than the request should be labeled and attached to the request in alphabetical sequence. Original documents such as contracts, wills, etc., should not be submitted because they become part of the Service’s file and will not be returned. (b) Foreign laws. The taxpayer must submit with the request a copy of the relevant parts of all foreign laws, including statutes, regulations, administrative pronouncements, and any other relevant legal authority. The documents submitted must be in the official language of the country involved and must be copied from an official publication of the foreign government or another widely available and generally accepted publication. If English is not the official language of the country involved, the taxpayer must also submit a copy of an English language version of the relevant parts of all foreign laws. This translation must be: (i) from an official publication of the foreign government or another widely available, generally accepted publication; or (ii) a certified English translation submitted in accordance with paragraph (c) of this section 7.01(2). The taxpayer must identify the title and date of publication, including updates, of any widely available and generally accepted publication that the taxpayer (or the taxpayer’s qualified translator) uses as a source for the relevant parts of the foreign law. (c) Standards for acceptability of submissions of documents in a language other than English and certified English translations of documents and laws in a language other than English. The taxpayer must submit with the request an accurate and complete certified English translation of the relevant parts of all contracts, wills, deeds, agreements, instruments, trust documents, proposed disclaimers, and other documents pertinent to the transaction that are in a language other than English. If the taxpayer chooses to submit certified English translations of Bulletin No. 2023–1 25 January 3, 2023 Analysis of material facts foreign laws, those translations must be based on an official publication of the foreign government or another widely available and generally accepted publication. In either case, the translation must be that of a qualified translator and must be attested to by the translator. The attestation must contain: (i) a statement that the translation submitted is a true and accurate translation of the foreign language document or law; (ii) a statement as to the attestant’s qualifications as a translator and as to that attestant’s qualifications and knowledge regarding tax matters or foreign law if the law is not a tax law; and (iii) the attestant’s name and address. (3) Analysis of material facts. The request must be accompanied by an analysis of facts and their bearing on the issue or issues. If documents attached to a request contain material facts, they must be included in the taxpayer’s analysis of facts in the request rather than merely incorporated by reference. Same issue in any return and whether return is under examination, before Appeals, before a Federal court, or being considered by the Pension Benefit Guaranty Corporation, by the Department of Labor, or by the Department of Health and Human Services (4) Statement regarding whether same issue is presented in any return and additional information required for § 301.9100 requests. The request must state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives, the same issue is presented in any return of the taxpayer, a related party within the meaning of § 267(b) or § 707(b)(1), or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504, or of any predecessor. The request must also state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives, any return on which the same issue is presented- (a) is currently under examination, before Appeals, or before a Federal court; (b) was previously under examination, before Appeals, or before a Federal court; (c) in qualified retirement plan matters, is being considered by the Pension Benefit Guaranty Corporation or the Department of Labor; or (d) in health care matters, is being considered by the Department of Labor or the Department of Health and Human Services. That the same issue is merely presented in a return does not preclude the Service from issuing a ruling, but the Service will not ordinarily issue a ruling if, at the time of the request, the identical issue is under examination or consideration or in litigation. See section 6.01 of this revenue procedure. A limited exception to the above rule is made for a § 301.9100 request. See section 5.03 of this revenue procedure. If a § 301.9100 request involves a tax year that is currently under examination, before Appeals, or before a Federal court, the taxpayer must notify the Service, as outlined above. This notification must include the name and telephone number of the examining agent or Appeals officer. Same or similar issue in a request previously submitted or currently pending (5) Statement regarding whether same or similar issue was previously ruled on or whether a request involving it was submitted or is currently pending. The request must state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives— January 3, 2023 26 Bulletin No. 2023–1 (a) the Service previously ruled on the same or a similar issue for the taxpayer, a related party within the meaning of § 267 or § 707(b)(1), or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504, or for a predecessor; (b) the taxpayer, a related party, a predecessor, or any of their representatives previously submitted a request (including an application for change in method of accounting) involving the same or a similar issue but no letter ruling or determination letter was issued; (c) the taxpayer, a related party, or a predecessor previously submitted a request (including an application for change in method of accounting) involving the same or a similar issue that is currently pending with the Service; (d) at the same time as this request, the taxpayer or a related party is presently submitting another request (including an application for change in method of accounting) involving the same or a similar issue; or (e) the taxpayer or a related party had, or has scheduled, a pre-submission conference involving the same or a similar issue. If the statement is affirmative for (a), (b), (c), (d), or (e) of this section 7.01(5), the statement must give the date the request was submitted, the date the request was withdrawn or ruled on, if applicable, and other details of the Service’s consideration of the issue. Interpretation of a substantive provision of an income or estate tax treaty (6) Statement regarding interpretation of a substantive provision of an income or estate tax treaty. If the request involves the interpretation of a substantive provision of an income or estate tax treaty, the request must state whether— (a) the tax authority of the treaty jurisdiction has issued a ruling on the same or similar issue for the taxpayer, a related party within the meaning of § 267 or § 707(b)(1), or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504, or for any predecessor; (b) the same or similar issue for the taxpayer, a related party, or any predecessor is being examined or has been settled by the tax authority of the treaty jurisdiction or is otherwise the subject of a closing agreement in that jurisdiction; and (c) the same or similar issue for the taxpayer, a related party, or any predecessor is being considered by the competent authority of the treaty jurisdiction. Interpretation of a transaction involving a party in a foreign country (7) Statement regarding involvement of a transactional party located in a foreign country. If the request involves a transaction between a taxpayer and a related party and either the taxpayer or the related party is located in a foreign country, the request must state whether the ruling potentially relates to any one of these categories — (a) Preferential Regime, defined as one that meets the following three requirements: (1) the regime relates to business taxation of income from geographically mobile activities (such as, financial and other service activities, including the provision of intangibles); (2) the regime offers a form of tax preference, such as, a reduction in the rate of tax or tax base compared to general principles of U.S. taxation; and (3) the regime imposes no or low effective tax rates on income from geographically mobile, financial, and other service activities; Bulletin No. 2023–1 27 January 3, 2023 (b) Transfer Pricing, meaning the letter ruling covers transfer pricing or the application of transfer pricing principles under § 482 and the regulations thereunder; (c) Downward Adjustment, meaning the letter ruling provides for a downward adjustment to the taxpayer’s taxable profit that is not directly reflected in its financial accounts. Examples include excess profits rulings or informal capital rulings that provide an adjustment that reduces taxable profits; (d) Treaty Permanent Establishment, meaning the letter ruling determines the existence or absence of a permanent establishment under an income tax treaty or provides how much profit will be attributed to a permanent establishment; (e) Related Party Conduit, meaning the letter ruling covers the cross-border flow of funds or income through a U.S. entity that is a conduit under common law principles or Treas. Reg. § 1.881-3, whether those funds or income flow to another country directly or indirectly. Letter from Bureau of Indian Affairs relating to certain letter ruling requests (8) Letter from Bureau of Indian Affairs relating to a letter ruling request for recognition of Indian tribal government status or status as a political subdivision of an Indian tribal government. To facilitate prompt action on a letter ruling request for recognition of Indian tribal government status or status as a political subdivision of an Indian tribal government, the taxpayer must submit with the letter ruling request a letter from the Department of the Interior, Bureau of Indian Affairs (BIA), verifying that the tribe is recognized by BIA as an Indian tribe and that the tribal government exercises governmental functions or that the political subdivision of the Indian tribal government has been delegated substantial governmental functions. A letter ruling request that does not contain this letter from BIA cannot be resolved until the Service obtains a letter from BIA regarding the tribe’s status. The taxpayer should send a request to verify tribal status to the following address: Branch of General Indian Legal Activity Division of Indian Affairs Office of the Solicitor U.S. Department of the Interior 1849 C Street, NW Washington, DC 20240 Statement of authorities supporting taxpayer’s views (9) Statement of supporting authorities. If the taxpayer advocates a particular conclusion, the taxpayer must include an explanation of the grounds for that conclusion and the relevant authorities to support it. Even if the taxpayer is not advocating a particular tax treatment of a proposed transaction, the taxpayer must furnish views on the tax results of the proposed transaction and a statement of relevant authorities to support those views. In all events, the request must include a statement of whether the law in connection with the request is uncertain and whether the issue is adequately addressed by relevant authorities. Statement of authorities contrary to taxpayer’s views (10) Statement of contrary authorities. To avoid a delay in the ruling process, contrary authorities should be brought to the attention of the Service at the earliest possible opportunity. If there are significant contrary authorities, it is usually helpful to discuss them in a pre-submission conference prior to submitting the ruling request. See section 10.07 of this revenue procedure regarding pre-submission conferences. The taxpayer is strongly encouraged to inform the Service about, and discuss the implications of, any authority believed to be contrary to the position January 3, 2023 28 Bulletin No. 2023–1 advanced, such as statutes, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements. If the taxpayer determines that there are no contrary authorities, a statement in the request to this effect should be included. If the taxpayer does not furnish either contrary authorities or a statement that none exist, the Service in complex cases or those presenting difficult or novel issues may request submission of contrary authorities or a statement that none exist. Failure to comply with this request may result in the Service’s refusal to issue a letter ruling or determination letter. The taxpayer’s identification of and discussion of contrary authorities will generally enable Service personnel to more quickly understand the issue and relevant authorities. Having this information should make research more efficient and lead to earlier action by the Service. If the taxpayer does not disclose and distinguish significant contrary authorities, the Service may need to request additional information, which will delay action on the request. Statement identifying pending legislation (11) Statement identifying pending legislation. When filing the request, the taxpayer must identify any pending legislation that may affect the proposed transaction. In addition, the taxpayer must notify the Service if any such legislation is introduced after the request is filed but before a letter ruling or determination letter is issued. Deletion statement required by § 6110 (12) Statement identifying information to be deleted from the public inspection copy of letter ruling or determination letter. The text of letter rulings and determination letters is open to public inspection under § 6110. The Service makes deletions from the text before it is made available for inspection. To help the Service make the deletions required by § 6110(c), a request for a letter ruling or determination letter must be accompanied by a statement indicating the deletions desired, except where a letter ruling or determination letter is open to public inspection under § 6104. If the deletion statement is not submitted with the request, the Service will notify the taxpayer that the request will be closed if the Service does not receive the deletion statement within 21 calendar days. See section 8.05 of this revenue procedure. Section 6110(l)(1) provides that § 6110 disclosure provisions do not apply to any matter to which § 6104 applies. Therefore, letter rulings, determination letters, technical advice memoranda, and related background file documents dealing with the following matters (covered by § 6104) are not subject to § 6110 disclosure provisions— (i) An approved application for exemption under § 501(a) as an organization described in § 501(c) or (d), or notice of status as a political organization under § 527, together with any papers submitted in support of such application or notice; (ii) An application for exemption under § 501(a) with respect to the qualification of a pension, profit sharing or stock bonus plan, or an individual retirement account described in § 408 or § 408A, or any application for exemption under § 501(a) by an organization forming part of such a plan or account; (iii) Any document issued by the Internal Revenue Service in which the qualification or exempt status of a plan or account is granted, denied, or revoked or the portion of any document in which technical advice with respect thereto is given; (iv) Any application filed and any document issued by the Internal Revenue Service with respect to the qualification or status of master and prototype retirement plans; and Bulletin No. 2023–1 29 January 3, 2023 (v) The portion of any document issued by the Internal Revenue Service with respect to the qualification or exempt status of a retirement plan or account of a proposed transaction by such plan or account. (a) Format of deletion statement. A taxpayer who wants only names, addresses, and identifying numbers to be deleted should state this in the deletion statement. If the taxpayer wants more information deleted, the deletion statement must be accompanied by a copy of the request and supporting documents on which the taxpayer should bracket the material to be deleted. The deletion statement must include the statutory basis under § 6110(c) for each proposed deletion. If the taxpayer decides to ask for additional deletions before the letter ruling or determination letter is issued, the taxpayer may submit additional deletion statements. (b) Location of deletion statement. The deletion statement must be made in a separate document from the request for a letter ruling or determination letter and must be placed on top of the request. (c) Signature. The deletion statement must be signed and dated by the taxpayer or the taxpayer’s authorized representative. See section 7.01(13) of this revenue procedure for signature requirements. (d) Additional information. The taxpayer should follow the same procedures of this section 7.01(12) to propose deletions from any additional information submitted after the initial request. An additional deletion statement is not required with each submission of additional information if the taxpayer’s initial deletion statement requests that only names, addresses, and identifying numbers are to be deleted and the taxpayer wants only the same information deleted from the additional information. (e) Taxpayer may protest deletions not made. After receiving from the Service the notice under § 6110(f)(1) of intention to disclose the letter ruling or determination letter (including a copy of the version proposed to be open to public inspection and notation of third-party communications under § 6110(d)), the taxpayer may protest the disclosure of certain information in the letter ruling or determination letter. The taxpayer must send a written statement to the Service office indicated on the notice of intention to disclose, within 20 calendar days of the date the notice of intention to disclose is mailed to the taxpayer. The statement must identify those deletions that the Service has not made and that the taxpayer believes should have been made. The taxpayer must also submit a copy of the version of the letter ruling or determination letter and bracket the proposed deletions that have not been made by the Service. Generally, the Service will not consider deleting any material that the taxpayer did not propose to be deleted before the letter ruling or determination letter was issued. Within 20 calendar days after the Service receives the response to the notice under § 6110(f) (1), the Service will mail to the taxpayer its final administrative conclusion regarding the deletions to be made. The taxpayer does not have the right to a conference to resolve any disagreements concerning material to be deleted from the text of the letter ruling or determination letter. These matters may, however, be taken up at any conference that is otherwise scheduled regarding the request. (f) Taxpayer may request delay of public inspection. After receiving the notice of intention to disclose under § 6110(f)(1), but no later than 60 calendar days after the date of the notice, the taxpayer may send a written request for delay of public inspection under either § 6110(g)(3) or (4). The request for delay must be sent to the Service office indicated on the notice of intention January 3, 2023 30 Bulletin No. 2023–1 to disclose. A request for delay under § 6110(g)(3) must contain the date on which it is expected that the underlying transaction will be completed. The request for delay under § 6110(g)(4) must contain a statement from which the Commissioner of Internal Revenue may determine whether there are good reasons for the continued delay. Signature on request (13) Signature by taxpayer or authorized representative. The request for a letter ruling or determination letter must be signed and dated by the taxpayer or the taxpayer’s authorized representative. (a) Paper submissions. The original of a request for a letter ruling or determination letter submitted on paper should generally include a wet-ink signature. If it is not possible to physically sign the request, the Service will accept an image of a signature or digital signature transmitted separately according to the electronic submission procedures for such a request. (b) Electronic submissions. A request for a letter ruling or determination letter submitted electronically must include an image of a signature (scanned or photographed) or a digital signature that uses encryption techniques to provide proof of original and unmodified documentation. The Service will accept electronic signatures in one of the following formats: tiff, jpg, jpeg, pdf, Microsoft Office suite, or Zip. See section 7.04 of this revenue procedure for submission procedures. Authorized representatives (14) Authorized representatives. (a) To sign the request or to appear before the Service in connection with the request, the taxpayer’s authorized representative must be one of the following (for rules on who may practice before the Service, see Treasury Department Circular No. 230, 31 C.F.R. part 10): (i) An attorney who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as an attorney and current authorization to represent the taxpayer; (ii) A certified public accountant who is duly qualified to practice in any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as a certified public accountant and current authorization to represent the taxpayer; (iii) An enrolled agent (a person who is currently enrolled as an agent to practice before the Service) who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current enrollment and authorization to represent the taxpayer. The enrollment number must be included in the declaration; (iv) An enrolled actuary (an individual currently enrolled as an actuary by the Joint Board for the Enrollment of Actuaries pursuant to 29 U.S.C. § 1242) who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as an enrolled actuary and current authorization to represent the taxpayer. Practice before the Service as an enrolled actuary is limited to representation with Bulletin No. 2023–1 31 January 3, 2023 respect to issues involving §§ 401, 403(a), 404, 405, 412, 413, 414, 419, 419A, 420, 4971, 4972, 4976, 4980, 6057, 6058, 6059, 6652(d), 6652(e), 6692, and 7805(b); former § 405; and 29 U.S.C. § 1083; (v) An enrolled retirement plan agent (an individual currently enrolled as a retirement plan agent) who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration as an enrolled retirement plan agent and current authorization to represent the taxpayer. Practice before the Service as an enrolled retirement plan agent is limited to representation with respect to issues involving the following programs: Employee Plans Determination Letter program; Employee Plans Compliance Resolution System; and Employee Plans Pre-approved program. Enrolled retirement plan agents also are generally permitted to represent taxpayers with respect to IRS forms under the 5300 and 5500 series, which are filed by retirement plans and plans sponsors, but not with respect to actuarial forms and schedules; or (vi) Any other person, including a foreign representative, who has received a “Letter of Authorization” from the Director of the Office of Professional Responsibility under section 10.7(d) of Treasury Department Circular No. 230. A person may make a written request for a “Letter of Authorization” to: Office of Professional Responsibility, SE:OPR, Internal Revenue Service, 1111 Constitution Ave., NW, Washington, DC 20224. Section 10.7(d) of Circular No. 230 authorizes the Commissioner to allow an individual who is not otherwise eligible to practice before the Service to represent another person in a particular matter. (b) A regular full-time employee representing his or her employer; a general partner representing his or her partnership; a bona fide officer representing his or her corporation, association, or organized group; a trustee, receiver, guardian, personal representative, administrator, executor, or regular full-time employee representing a trust, receivership, guardianship, or estate; or an individual representing an immediate family member may sign the request or appear before the Service in connection with the request if the individual provides current authorization to represent the taxpayer. See section 7.01(15) of this revenue procedure. A taxpayer may be required to file a Form 8821, Tax Information Authorization, for certain employees not authorized to represent the taxpayer to receive taxpayer information from the Service. (c) Tax return preparers that are not described in subsections (a) and (b) of this section may not sign the request, appear before the Service, or represent a taxpayer in connection with a request for a letter ruling or a determination letter. See section 10.3(f)(3) of Treasury Department Circular No. 230. (d) A foreign representative, other than a person referred to in subsections (a) and (b) of this section, is not authorized to practice before the Service within the United States and must withdraw from representing a taxpayer in a request for a letter ruling or a determination letter. In this situation, the nonresident alien or foreign entity must submit the request for a letter ruling or a determination letter on the individual’s or the entity’s own behalf or through a person referred to in subsections (a) and (b) of this section. Power of Attorney and Declaration of Representative (15) Power of Attorney and Declaration of Representative. Form 2848, Power of Attorney and Declaration of Representative, should be used to provide the representative’s authority (Part I of Form 2848, Power of Attorney) and the representative’s qualification (Part II of Form 2848, Declaration of Representative). The name of the person signing Part I of Form 2848 should be typed or printed on this form. A Form 2848 executed for the purpose of a request for a letter ruling or determination letter should reflect that it is for a “specific use” that is not recorded on the January 3, 2023 32 Bulletin No. 2023–1 Centralized Authorization File (CAF) and should only be submitted in conjunction with such a request as provided in this revenue procedure (that is, it should not be submitted to the Service by any other method listed in the Instructions for Form 2848). A Form 2848 must be signed by both the taxpayer (or the person signing on the taxpayer’s behalf) and the representative in a manner consistent with section 7.01(13) of this revenue procedure. If the Form 2848 is remotely signed by the taxpayer (or the person signing on the taxpayer’s behalf) using a permissible electronic or digital method, the representative should follow the necessary steps to verify the taxpayer’s identity provided in the Electronic Signatures section of the Instructions for Form 2848, but are not required to provide a separate attestation unless requested by the Service. If the Form 2848 is signed by the taxpayer (or the person signing on the taxpayer’s behalf) using a physical, wet-ink signature, a submission may include a copy or scanned version of the Form 2848 as long as its authenticity is not reasonably disputed. For additional information regarding the power of attorney form, see section 7.02(2) of this revenue procedure. The taxpayer’s authorized representative, whether or not enrolled, must comply with Treasury Department Circular No. 230, which provides the rules for practice before the Service. In situations where the Service believes that the taxpayer’s representative is not in compliance with Circular 230, the Service will bring the matter to the attention of the Office of Professional Responsibility. Penalties of perjury statement (16) Penalties of perjury statement. (a) Format of penalties of perjury statement. A request for a letter ruling or determination letter and any change in the request submitted at a later time must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined [Insert, as appropriate: this request or this modification to the request], including accompanying documents, and, to the best of my knowledge and belief, [Insert, as appropriate: the request or the modification] contains all the relevant facts relating to the request, and such facts are true, correct, and complete.” See section 8.05(4) of this revenue procedure for the penalties of perjury statement applicable for submissions of additional information. (b) Signature by taxpayer. The declaration must be signed and dated by the taxpayer, not the taxpayer’s representative, in a manner consistent with section 7.01(13) of this revenue procedure. The person who signs for a corporate taxpayer must be an officer of the corporate taxpayer who has personal knowledge of the facts and whose duties are not limited to obtaining a letter ruling or determination letter from the Service. If the corporate taxpayer is a member of an affiliated group filing consolidated returns, a penalties of perjury statement must also be signed and submitted by an officer of the common parent of the group. The person signing for a trust, a state law partnership, or a limited liability company must be, respectively, a trustee, general partner, or member-manager who has personal knowledge of the facts. Bulletin No. 2023–1 33 January 3, 2023 Sample format for a letter ruling request (17) Sample format for a letter ruling request. To assist a taxpayer or the taxpayer’s representative in preparing a letter ruling request, a sample format for a letter ruling request is provided in Appendix B of this revenue procedure. This format is not required to be used. Checklist (18) Checklist for letter ruling requests. An Associate office will be able to respond more quickly to a taxpayer’s letter ruling request if the request is carefully prepared and complete. The checklist in Appendix C of this revenue procedure is designed to assist taxpayers in preparing a request by reminding them of the essential information and documents to be furnished with the request. The checklist in Appendix C must be completed to the extent required by the instructions in the checklist, signed and dated by the taxpayer or the taxpayer’s representative, and placed on top of the letter ruling request. If the checklist in Appendix C is not received, a branch representative will ask the taxpayer or the taxpayer’s representative to submit the checklist; this may delay action on the letter ruling request. For letter ruling requests on certain matters, specific checklists supplement the checklist in Appendix C. These checklists are in Appendix D, Appendix E, or are listed in section 1 of Appendix F of this revenue procedure and must also be completed and placed on top of the letter ruling request along with the checklist in Appendix C. Taxpayers can obtain copies of the checklists by accessing this revenue procedure in Internal Revenue Bulletin 2023-1, available at www.irs.gov/irb. A copy of this checklist may be used. Additional pr ocedural information required with request Multiple issues .02 (1) To request separate letter rulings for multiple issues in a single situation. If more than one issue is presented in a request for a letter ruling, the Associate office generally will issue a single letter ruling covering all the issues. If the taxpayer requests separate letter rulings on any of the issues (because, for example, one letter ruling is needed sooner than another), the Associate office usually will comply with the request unless doing so is not feasible or not in the best interest of the Service. A taxpayer who wants separate letter rulings on multiple issues should make this clear in the request and if submitting the request on paper, submit the original and at least two copies of the request, with one additional copy for each additional separate letter ruling requested. See section 15.06(3) of this revenue procedure regarding whether a single user fee will be charged. In issuing each letter ruling, the Associate office will state that it has issued separate letter rulings or that requests for other letter rulings are pending. Power of attorney used to indicate recipient of a copy or copies of a letter ruling or a determination letter (2) Power of attorney used to indicate recipient or recipients of a copy or copies of a letter ruling or a determination letter. Once the Service signs the letter ruling or determination letter, the Service has the discretion to determine the form in which it will provide the letter ruling or determination letter to the taxpayer, but will generally comply with a taxpayer’s request for a particular form. See section 7.02(5) of this revenue procedure. If providing the ruling on paper, the Service will send the original to the taxpayer, not the taxpayer’s representative. At the taxpayer’s request, the Service will send one copy of the letter ruling or determination letter to up to two authorized representatives. At the discretion of the Service, the Service may provide a copy of the letter ruling or determination letter to up to two authorized representatives, even though the taxpayer did not request that the Service send a copy of notices and communications to the taxpayer’s representatives. Taxpayers that use Form 2848, Power of Attorney and Declaration of Representative, to designate representatives, may request that copies of notices and communications be sent to the representatives listed at Line 2 by checking the corresponding January 3, 2023 34 Bulletin No. 2023–1 box on Line 2. Taxpayers may use Line 5 of Form 2848 to advise the Service that a copy of the letter ruling or determination letter should not be sent to the taxpayer’s representative(s). If no box is checked on Line 2 and the taxpayer does not indicate otherwise on Line 5, the Service may in its discretion provide a copy of the letter ruling or determination letter to up to two authorized representatives. (3) To request a particular conclusion on a proposed transaction. A taxpayer who requests a particular conclusion on a proposed transaction may make the request for a letter ruling in two parts. This type of request is referred to as a “two-part” letter ruling request. The first part must include the complete statement of facts and related documents described in section 7.01 of this revenue procedure. The second part must include a summary statement of the facts the taxpayer believes to be controlling in reaching the conclusion requested. If the Associate office accepts the taxpayer’s statement of controlling facts, it will base its letter ruling on these facts. Ordinarily, this statement will be incorporated into the letter ruling. The Associate office reserves the right to rule on the basis of a more complete statement of the facts and to seek more information in developing the facts and restating them. A taxpayer who chooses this two-part procedure has all the rights and responsibilities provided in this revenue procedure. Taxpayers may not use the two-part procedure if it is inconsistent with other procedures, such as those dealing with requests for permission to change accounting methods or periods, applications for recognition of exempt status under § 501(a) or § 521, or requests for rulings on employment tax status. After the Associate office has resolved the issues presented by a letter ruling request, the Associate office representative may request that the taxpayer submit a proposed draft of the letter ruling to expedite the issuance of the ruling. See section 8.07 of this revenue procedure. “Two-part” letter ruling r equests Expedited handling (4) To request expedited handling. The Service ordinarily processes requests for letter rulings and determination letters in order of the date received. Expedited handling means that a request is processed ahead of requests received before it. Expedited handling is granted only in rare and unusual cases, both out of fairness to other taxpayers and because the Service seeks to process all requests as expeditiously as possible and to give appropriate deference to normal business exigencies in all cases not involving expedited handling. A taxpayer with a compelling need to have a request processed ahead of requests received before it may request expedited handling. This request must explain in detail the need for expedited handling. The request for expedited handling must be made in writing, preferably in a separate letter included with the request for the letter ruling or determination letter or provided soon after its filing. If the request for expedited handling is contained in the letter requesting the letter ruling or determination letter, the letter should state at the top of the first page “Expedited Handling Is Requested. See page ___ of this letter.” A request for expedited handling will not be forwarded to a branch for action until the user fee has been paid. Whether a request for expedited handling will be granted is within the Service’s discretion. The Service may grant the request when a factor outside a taxpayer’s control creates a real business need to obtain a letter ruling or determination letter before a certain date to avoid serious business Bulletin No. 2023–1 35 January 3, 2023 consequences. Examples include situations in which a court or governmental agency has imposed a specific deadline for the completion of a transaction, or where a transaction must be completed expeditiously to avoid an imminent business emergency (such as the hostile takeover of a corporate taxpayer), provided that the taxpayer can demonstrate that the deadline or business emergency, and the need for expedited handling, resulted from circumstances that could not reasonably have been anticipated or controlled by the taxpayer. To qualify for expedited handling in such situations, the taxpayer must also demonstrate that the taxpayer submitted the request as promptly as possible after becoming aware of the deadline or emergency. The extent to which the letter ruling or determination letter request complies with all of the applicable requirements of this revenue procedure, and fully and clearly presents the issues, is a factor in determining whether expedited treatment will be granted. When the Service agrees to process a request out of order, it cannot give assurance that any letter ruling or determination letter will be processed by the date requested. The scheduling of a closing date for a transaction or a meeting of the board of directors or shareholders of a corporation, without regard for the time it may take to obtain a letter ruling or determination letter, will not be considered a sufficient reason to process a request ahead of its regular order. Also, the possible effect of fluctuation in the market price of stocks on a transaction will not be considered a sufficient reason to process a request out of order. Because most requests for letter rulings and determination letters cannot be processed out of order, the Service urges all taxpayers to submit their requests well in advance of the contemplated transaction. In addition, to facilitate prompt action on letter ruling requests, taxpayers are encouraged to ensure that their initial submissions comply with all of the requirements of this revenue procedure (including the requirements of other applicable guidelines set forth in Appendix F of this revenue procedure), to prepare “two-part” requests described in section 7.02(3) of this revenue procedure when possible, and to promptly provide any additional information requested by the Service. Requesting form of any document related to letter ruling request provided to taxpayer or taxpayer’s authorized representative (5) To request the receipt of any document related to letter ruling request by fax, electronic facsimile, or encrypted email attachment. If the taxpayer so requests, the Associate office may provide by fax, electronic facsimile, or encrypted email attachment to the taxpayer or the taxpayer’s authorized representative a copy of any document related to the letter ruling request (for example, the letter ruling itself or a request for additional information). The Service has the discretion to determine the form in which it will correspond with the taxpayer, but will generally comply with a taxpayer’s request for a particular form. The taxpayer must make such a request in writing, preferably as part of the original request for the letter ruling. The request may be submitted at a later date, but such a request will only be respected prospectively with respect to documents generated after it is received, and must be received prior to the signing of the letter ruling. If the taxpayer requests documents by fax or electronic facsimile, the request must contain the fax number of the taxpayer or the taxpayer’s authorized representative to whom the document is to be provided. A document other than the letter ruling will be faxed by a branch representative. A copy of the letter ruling may be faxed by either a branch representative or the Disclosure and Litigation Support Branch of the Legal Processing Division of the Office of Associate Chief Counsel (Procedure and Administration) (CC:PA:LPD:DS). For purposes of § 301.6110-2(h), however, a letter ruling is not issued until the ruling is mailed. If the taxpayer requests documents by encrypted email attachment, the request must specify which email encryption method is to be used and, if the taxpayer has not already provided the appropriate memorandums of understanding (MOUs) to use encrypted email attachments, must include those MOUs. See section 7.04(3) of this revenue procedure for acceptable email encryption methods and procedures. January 3, 2023 36 Bulletin No. 2023–1 Requesting a conference (6) To request a conference. A taxpayer who wants to have a conference on the issues involved in a request for a letter ruling should indicate this in writing when filing the request or soon thereafter. See sections 10.01, 10.02, and 11.11(2) of this revenue procedure. Letter ruling requests involving welfare benefit funds (including voluntary employees’ beneficiary associations (VEBAs)) Submitting request for letter ruling or determination letter .03 If a letter ruling is sought on the tax consequences to both the welfare benefit fund and an employer that contributed to the fund, each taxpayer (the fund and each contributing employer) must submit a separate letter ruling request and pay the applicable user fee listed in Appendix A of this revenue procedure. .04 Requests for letter rulings under the jurisdiction of an Associate Office may be submitted by mail, by electronic facsimile, or by encrypted email attachment. Requests for determination letters under the jurisdiction of LB&I may be submitted only by electronic facsimile or by encrypted email attachment. Requests for determination letters under the jurisdiction of SB/SE regarding income taxes (including requests from international taxpayers) may be submitted only by electronic facsimile. Requests for determination letters under the jurisdiction of SB/SE regarding estate and gift taxes, employment taxes, and excise taxes may be submitted only on paper. Requests for determination letters under the jurisdiction of W&I may be submitted only on paper. For requests for determination letters under the jurisdiction of TE/GE, see Rev. Proc. 2023-4 and Rev. Proc. 2023-5, this Bulletin. Submission by mail (1) A taxpayer submitting a request on paper generally needs to submit the original and one copy of the request. However, if the taxpayer identifies multiple Associate offices in the request with jurisdiction over issues presented by the request, the taxpayer must submit an additional copy of the request for each additional Associate office. If the request is under the jurisdiction of a single Associate office but presents multiple issues likely to require review by multiple branches of that office, the taxpayer is encouraged, but not required to submit additional copies of the request. Further, the taxpayer must submit the original and two copies of the request if the taxpayer is requesting separate letter rulings or determination letters on multiple issues as explained in section 7.02(1) of this revenue procedure; the taxpayer is requesting deletions other than names, addresses, and identifying numbers, as explained in section 7.01(12)(a) of this revenue procedure (one copy is the request for the letter ruling or determination letter and the second copy is the deleted version of such request); or the taxpayer is requesting a closing agreement (as defined in section 2.02 of this revenue procedure) on the issue presented. To use the paper method, first submit the full user fee payment set forth in Appendix A of this revenue procedure through www.pay.gov, and include a copy of the receipt for this payment with the request. See section 15.08 of this revenue procedure. (a) Addresses for request for letter ruling. Envelopes or packages containing letter ruling requests should be marked RULING REQUEST SUBMISSION. Bulletin No. 2023–1 37 January 3, 2023 If a private delivery service is not used, requests for letter rulings should be sent to the following address: Internal Revenue Service Attn: CC:PA:LPD:TSS P.O. Box 7604 Benjamin Franklin Station Washington, DC 20044 If a private delivery service is used, the address is: Internal Revenue Service Attn: CC:PA:LPD:TSS, Room 5336 1111 Constitution Ave., NW Washington, DC 20224 Requests for letter rulings may also be hand delivered between the hours of 8:00 a.m. and 4:00 p.m. to the courier’s desk at 1111 Constitution Avenue, NW, Washington, DC. A receipt will be given at the courier’s desk. The package should be addressed to: Courier’s Desk Internal Revenue Service Attn: CC:PA:LPD:TSS, Room 5336 1111 Constitution Ave., NW Washington, DC 20224 (b) SB/SE taxpayers (with regards to estate and gift taxes, employment taxes, and excise taxes) and W&I taxpayers should send requests for determination letters to the following address: Director SB/SE Exam, Specialty Policy Internal Revenue Service SE:S:E:HQ:SEP c/o Specialty Exam Policy, Tech Advisor 5000 Ellin Rd, Mail Stop C3-255 Office C2-156 Lanham, MD 20784 Submission by electronic facsimile (2) Taxpayers and their representatives are encouraged to use a secure electronic facsimile service for transmitting requests for advice. To use the secure electronic facsimile method, first submit the full user fee payment set forth in Appendix A of this revenue procedure through www. pay.gov, and include a copy of the receipt for this payment with the request. See section 15.08 of this revenue procedure. When compiling the request package, provide clear titles for the documents and distinguish files containing administrative forms and receipts from files that contain the request itself and from supplemental materials. If the submission is over 10 MB or over 50 pages, break it into smaller components and number the components sequentially with the total number (such as “1 of 4”, “2 of 4”, “3 of 4”, and “4 of 4”). January 3, 2023 38 Bulletin No. 2023–1 Transmit the full package, along with a cover sheet, to the secure electronic facsimile lines below. For requests under the jurisdiction of an Associate office: (877) 773-4950 For determination letter requests under the jurisdiction of LB&I: (844) 249-6231 For determination letter requests under the jurisdiction of SB/SE (with regards to income taxes (including requests from international taxpayers)): (877) 477-9193 Submission by encrypted email attachment (3) There are more risks associated with email than with electronic facsimile, such as the possibility that sensitive taxpayer information could be intercepted. Accordingly, the Service encourages taxpayers to use a secure electronic facsimile service for transmitting requests for advice. As an alternative, this section provides procedures for using encrypted email attachments for transmitting a request for advice under the jurisdiction of an Associate office or LB&I. Taxpayers using encrypted email attachments may choose to use a compression utility compatible with SecureZIP (note that many open-source utilities are not compatible with SecureZIP), Adobe Acrobat Pro password encryption, or Microsoft Office 2016/365 Protect Document to encrypt and send password-protected files. Because these programs do not encrypt the subject line or body of an email or the file name of the attachment, all sensitive taxpayer information, including the name of the taxpayer, should be included only in the encrypted attachment. These programs require that a sender create a password for the recipient to use to decrypt the attachments. The password should never be sent in the same email as the encrypted attachment. Instead, it should be provided to the Service in a separate email with a subject line that makes it easy to connect the password to the encrypted email. To use encrypted email attachments, first submit the full user fee payment set forth in Appendix A of this revenue procedure through www.pay.gov, and include a copy of the receipt for this payment with the request. See section 15.08 of this revenue procedure. A request transmitted through email must be accompanied by two MOUs: the MOU in Appendix G of this revenue procedure, acknowledging the risks of using email to transmit sensitive taxpayer information, and the appropriate MOU in Appendix H, agreeing to the terms for using the chosen method of encryption to receive sensitive taxpayer information. These MOUs must be signed by the taxpayer, not the taxpayer’s representative, in a manner consistent with section 7.01(13) of this revenue procedure. A Counsel representative will countersign and return the second MOU to the requester prior to transmitting any other information by encrypted email attachments. When compiling the request package, provide clear titles for the documents and distinguish files containing administrative forms and receipts from files that contain the request itself and from supplemental materials. Encrypt the files or enable the encryption utility on the email system Bulletin No. 2023–1 39 January 3, 2023 before generating the email. If the submission is over 5 MB or over 50 pages, break it into smaller components that do not exceed 5 MB each, and number the components sequentially with the total number (such as “1 of 4”, “2 of 4”, “3 of 4”, and “4 of 4”). Transmit the full package to the email addresses below. For requests under the jurisdiction of an Associate office: Userfee@irscounsel.treas.gov For determination letter requests under the jurisdiction of LB&I: lbi.irt.info@irs.gov Taxpayer representatives that have the technical ability to exchange email encrypted with Secure/Multipurpose Internet Mail Extensions (S/MIME) certificates may also elect to use LB&I’s Secure Email Message System (SEMS). Representatives seeking to use SEMS should contact the LB&I Office of the Assistant Deputy Commissioner, Compliance Integration at the phone number listed at the end of this document. Pending letter ruling requests Circumstances under which the taxpayer with a pending letter ruling request must notify the Associate office .05 (1) Circumstances under which the taxpayer with a pending letter ruling request must notify the Associate office. The taxpayer must notify the Associate office if, after the letter ruling request is filed but before a letter ruling is issued, the taxpayer knows that— (a) a field office has started an examination of the issue or the identical issue on an earlier year’s return; (b) in the case of a § 301.9100 request, a field office has started an examination of the return for the taxable year in which an election should have been made or any taxable year that would have been affected by the election had it been timely made. See § 301.9100-3(e)(4)(i) and section 5.03(3) of this revenue procedure; (c) legislation that may affect the transaction has been introduced. See section 7.01(11) of this revenue procedure; (d) another letter ruling request (including an application for change in method of accounting), involving the same or similar issue as that pending with the Service, has been submitted by the taxpayer, a related party within the meaning of § 267 or § 707(b)(1), or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504; (e) in qualified retirement plan matters, the issue is being considered by the Pension Benefit Guaranty Corporation or the Department of Labor; or (f) in health care matters, the issue is being considered by the Department of Labor or the Department of Health and Human Services. January 3, 2023 40 Bulletin No. 2023–1 Taxpayer must notify the Associate office if a return is filed and must attach the request to the return (2) Taxpayer must notify the Associate office if a return is filed and must attach the request to the return. If the taxpayer files a return before a letter ruling is received from the Associate office concerning an issue in the return, the taxpayer must notify the Associate office that the return has been filed. The taxpayer must also attach a copy of the letter ruling request (Form 3115, if for a non-automatic change in method of accounting) to the return to alert the field office and avoid premature field action on the issue. Taxpayers filing their returns electronically may satisfy this requirement by attaching to their return a statement providing the date of the letter ruling request and the control number of the letter ruling. If, under the limited circumstances permitted in section 5 of this revenue procedure, the taxpayer requests a letter ruling after the return is filed, but before the return is examined, the taxpayer must also notify the field office having jurisdiction over the return and attach a copy of the letter ruling request to the notification to alert the field office and avoid premature field action on the issue. This section 7.05 also applies to pending requests for a closing agreement on a transaction for which a letter ruling is not requested or issued. For purposes of this section 7.05, the term “return” includes an original return, amended return, or claim for refund. When to attach letter ruling or determination letter to return .06 A taxpayer who, before filing a return, receives a letter ruling or determination letter about any transaction that has been consummated and that is relevant to the return being filed must attach to the return a copy of the letter ruling or determination letter. Taxpayers filing their returns electronically may satisfy this requirement by attaching a statement to their return that provides the date and control number of the letter ruling or determination letter. For purposes of this section 7.06, the term “return” includes an original return, amended return, or claim for refund. How to check on status of request for letter ruling or determination letter .07 The taxpayer or the taxpayer’s authorized representative may obtain information regarding the status of a request for a letter ruling or determination letter by calling the person whose name and telephone number are shown on the acknowledgment of receipt of the request or, in the case of a request for a letter ruling, the appropriate branch representative who contacts the taxpayer as explained in section 8.02 of this revenue procedure. Request for letter ruling or determination letter may be withdrawn or Associate office may decline to issue letter ruling .08 In general (1) In general. A taxpayer may withdraw a request for a letter ruling or determination letter at any time before the letter ruling or determination letter is signed by the Service. Correspondence and exhibits related to a request that is withdrawn or related to a letter ruling request for which an Associate office declines to issue a letter ruling will not be returned to the taxpayer. See section 7.01(2)(a) of this revenue procedure. In appropriate cases, an Associate office may publish its conclusions in a revenue ruling or revenue procedure. Notification of appropriate Service official (2) Notification of appropriate Service official. Bulletin No. 2023–1 41 January 3, 2023 (a) Letter ruling requests. If a taxpayer withdraws a letter ruling request or if the Associate office declines to issue a letter ruling, the Associate office generally will notify, by memorandum, the appropriate Service official in the operating division that has examination jurisdiction of the taxpayer’s tax return. For taxpayers under the jurisdiction of the Division Counsel (LB&I), the Associate office will also send a copy of the memorandum to the Assistant Deputy Commissioner, Compliance Integration. In doing so, the Associate office may give its views on the issues in the request for consideration in any later examination of the return. This section 7.08(2)(a) generally does not apply if the taxpayer withdraws the letter ruling request and submits a written statement that the transaction has been, or is being, abandoned and if the Associate office has not already formed an adverse opinion. (b) Notification of Service official may constitute Chief Counsel Advice. If the memorandum referred to in paragraph (a) of this section 7.08(2) provides more than the fact that the request was withdrawn and that the Associate office was tentatively adverse, or more than the fact that the Associate office declined to issue a letter ruling, the memorandum may constitute Chief Counsel Advice, as defined in § 6110(i)(1), and may be subject to disclosure under § 6110. SECTION 8. HOW DO THE ASSOCIATE OFFICES HANDLE LETTER RULING REQUESTS? Technical Services Support Branch receives, initially controls, and refers the request to the appropriate Associate office Branch representative of the Associate office contacts taxpayer within 21 calendar days The Associate offices will issue letter rulings on the matters and under the circumstances explained in sections 3 and 5 of this revenue procedure and in the manner explained in this section and section 11 of this revenue procedure. See section 9 of this revenue procedure for procedures for change in method of accounting requests. .01 All requests for letter rulings will be received and initially controlled by the Technical Services Support Branch of the Legal Processing Division of the Associate Chief Counsel (Procedure and Administration) (CC:PA:LPD:TSS). That office will process the incoming documents and the user fee, and it will forward the file to the appropriate Associate office for assignment to a branch that has jurisdiction over the specific issue involved in the request. .02 Within 21 calendar days after a letter ruling request has been received in the branch of the Associate office that has jurisdiction over the issue, a representative of the branch will contact the taxpayer or, if the request includes a properly executed power of attorney, the authorized representative, unless the power of attorney provides otherwise. During such contact, the branch representative will discuss the procedural issues in the letter ruling request. If the case is complex or a number of issues are involved, it may not be possible for the branch representative to discuss the substantive issues during this initial contact. When possible, for each issue within the branch’s jurisdiction, the branch representative will tell the taxpayer— (1) whether the branch representative will recommend that the Associate office rule as the taxpayer requested, rule adversely on the matter, or not rule; (2) whether the taxpayer should submit additional information to enable the Associate office to rule on the matter; (3) whether the letter ruling complies with all of the provisions of this revenue procedure, and if not, which requirements have not been met; or (4) whether, because of the nature of the transaction or the issue presented, a tentative conclusion on the issue cannot be reached. January 3, 2023 42 Bulletin No. 2023–1 If the letter ruling request involves matters within the jurisdiction of more than one branch or Associate office, a representative of the branch that received the original request will tell the taxpayer within the initial 21 calendar days— (1) that the matters within the jurisdiction of another branch or Associate office have been referred to that branch or Associate office for consideration, and the date the referral was made, and (2) that a representative of that branch or Associate office will contact the taxpayer within 21 calendar days after receiving the referral to discuss informally the procedural and, to the extent possible, the substantive issues in the request. This section 8.02 applies to all matters except for cases within the jurisdiction of the Associate Chief Counsel (Financial Institutions and Products) concerning insurance issues requiring actuarial computations. Determines if transaction can be modified to obtain favorable letter ruling .03 If less than a fully favorable letter ruling is anticipated, the branch representative will tell the taxpayer whether minor changes in the transaction or adherence to certain published positions would bring about a favorable ruling. The branch representative may also tell the taxpayer the facts that must be furnished in a document to comply with Service requirements. The branch representative will not suggest precise changes that would materially alter the form of the proposed transaction or materially alter a taxpayer’s proposed accounting period. If, at the end of this discussion, the branch representative determines that a meeting in the Associate office would be more helpful to develop or exchange information, a meeting will be offered and an early meeting date arranged. When offered, this meeting is in addition to the taxpayer’s conference of right that is described in section 10.02 of this revenue procedure. Not bound by informal opinion expressed .04 The Service will not be bound by the informal opinion expressed by the branch representative or any other Service representative, and such an opinion cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). May request additional information Must be submitted within 21 calendar days .05 (1) Additional information must be submitted within 21 calendar days. If the request lacks essential information, which may include additional information needed to satisfy the procedural requirements of this revenue procedure as well as substantive changes to transactions or documents needed from the taxpayer, the branch representative will request such information during the initial or subsequent contacts with the taxpayer or its authorized representative. The branch representative will inform the taxpayer or its authorized representative that the request will be closed if the Associate office does not receive the requested information within 21 calendar days from the date of the request unless an extension of time is granted. To facilitate prompt action on letter ruling requests, taxpayers may request that the Associate office request additional information by fax, electronic facsimile, or encrypted email attachment. See section 7.02(5) of this revenue procedure. Material facts furnished to the Associate office by telephone or orally at a conference must be promptly confirmed in writing by mail, fax, or email to the Associate office. This confirmation, and any additional information requested by the Associate office that is not part of the information requested during the initial contact, must be furnished within 21 calendar days from the date the Associate office makes the request. Bulletin No. 2023–1 43 January 3, 2023 Extension of reply period if justified and approved (2) Extension of reply period if justified and approved . The Service will grant an extension of the 21-day period for providing additional information only if the extension is justified in writing by the taxpayer and approved by the branch reviewer. A request for an extension should be submitted before the end of the 21-day period. If unusual circumstances close to the end of the 21-day period make a written request impractical, the taxpayer should notify the Associate office within the 21-day period that there is a problem and that the written request for extension will be provided shortly. The taxpayer will be told promptly of the approval or denial of the requested extension. If the extension request is denied, there is no right of appeal. Letter ruling request closed if the taxpayer does not submit additional information (3) Letter ruling request closed if the taxpayer does not submit additional information. If the taxpayer does not submit the information requested during the initial or subsequent contacts within the time provided, the letter ruling request will be closed and the taxpayer will be notified in writing. If the information is received after the request is closed, the request will be reopened and treated as a new request as of the date the information is received. The taxpayer must pay another user fee before the case can be reopened. Penalties of perjury statement for additional information (4) Penalties of perjury statement. Additional information submitted to the Service must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the relevant facts relating to the request for the information, and such facts are true, correct, and complete.” This declaration must be signed in accordance with the requirements in section 7.01(16)(b) of this revenue procedure. Transmitting request and submitting additional information by fax, electronic facsimile, or encrypted email attachment (5) Transmitting request and submitting additional information by fax, electronic facsimile, or encrypted email attachment. To facilitate prompt action on letter ruling requests, taxpayers may request that the Associate office request additional information by fax, electronic facsimile, or encrypted email attachment. See section 7.02(5) of this revenue procedure. Taxpayers may also submit additional information by fax, electronic facsimile, or encrypted email attachment as soon as the information is available. The Associate office representative who requests additional information can provide a fax or electronic facsimile number or email address to which the information can be sent. Submitting additional information by mail (6) Submitting additional information by mail. (a) If a private delivery service is not used, the additional information should be sent to: Internal Revenue Service ADDITIONAL INFORMATION Attn: [Name, office symbols, and room number of the Associate office representative who requested the information] P.O. Box 7604 Benjamin Franklin Station Washington, DC 20044 For cases involving a request for change in method of accounting or period, see section 9.08 of this revenue procedure for the address to which to send additional information. January 3, 2023 44 Bulletin No. 2023–1 (b) If a private delivery service is used, the additional information for all cases should be sent to: Internal Revenue Service ADDITIONAL INFORMATION Attn: [Name, office symbols, and room number of the Associate office representative who requested the information] 1111 Constitution Ave., NW Washington, DC 20224 (c) A taxpayer submitting additional information by mail only needs to submit one copy of the additional information unless the Associate office requests additional copies. (7) Identifying information. For all cases, the additional information should include the taxpayer’s name, the case control number and the name, office symbols, and room number of the Associate office representative who requested the information. The Associate office representative can provide the latter information to the taxpayer. Identifying information included in additional information Near the completion of the ruling process, advises the taxpayer of conclusions and, if the Associate office will rule adversely, offers the taxpayer the opportunity to withdraw the letter ruling request .06 Generally, after the conference of right is held but before the letter ruling is issued, the branch representative will orally notify the taxpayer or the taxpayer’s representative of the Associate office’s conclusions. See section 10 of this revenue procedure for a discussion of conferences of right. If the Associate office is going to rule adversely, the taxpayer will be offered the opportunity to withdraw the letter ruling request. If, within ten calendar days of the notification by the branch representative, the taxpayer or the taxpayer’s representative does not notify the branch representative that the taxpayer wishes to withdraw the ruling request, the adverse letter ruling will be issued unless an extension is granted. See section 15.10 of this revenue procedure for information regarding refunds of user fees. May request that taxpayer submit draft proposed letter ruling near the completion of the ruling process .07 To accelerate the issuance of letter rulings, in appropriate cases near the completion of the ruling process, the Associate office representative may request that the taxpayer or the taxpayer’s representative submit a proposed draft of the letter ruling. Such draft would be based on the discussions of the issues between the representative and the taxpayer or the taxpayer’s representative. The taxpayer is not required to prepare a draft letter ruling to receive a letter ruling. The format of the submission should be discussed with the Associate office representative who requests the draft letter ruling. The representative usually can provide a sample format of a letter ruling and will discuss with the taxpayer or the taxpayer’s representative the facts, analysis, and letter ruling language to be included. The taxpayer should submit the draft in the same manner as any other additional information and should include in the transmittal the information that should be included with any other additional information (for example, a penalties of perjury statement is required). See section 8.05(5) and (6) of this revenue procedure. Issues separate letter rulings for substantially identical letter rulings, but generally issues a single letter ruling for related § 301.9100 letter rulings .08 Bulletin No. 2023–1 45 January 3, 2023 Substantially identical letter rulings (1) Substantially identical letter rulings. For letter ruling requests qualifying for the user fee provided in paragraph (A)(5)(a) of Appendix A of this revenue procedure for substantially identical letter rulings, a separate letter ruling will generally be issued for each requester or entity as the Associate office deems necessary. Related § 301.9100 letter rulings (2) Related § 301.9100 letter rulings. (a) For a § 301.9100 letter ruling request for an extension of time to file a Form 3115 qualifying under section 15.07(4) for the user fee provided in paragraph (A)(5)(d) of Appendix A of this revenue procedure for an identical change in method of accounting, the Associate office generally will issue a single letter on behalf of all applicants on Form 3115 that are the subject of the request. (b) For a § 301.9100-3 letter ruling request for an extension of time to file an entity classification election for multiple entities qualifying under section 15.07(2) for the user fee provided in paragraph (A)(5)(a) of Appendix A of this revenue procedure, the Associate office generally will issue a single letter on behalf of all entities that are the subject of the request. The taxpayer may request that separate letters be issued to each entity that is the subject of the request. See generally section 5.03 of this revenue procedure. Sends a copy of the letter ruling to appropriate Service official SECTION 9. WHAT ARE THE SPECIFIC AND ADDITIONAL PROCEDURES FOR A REQUEST FOR A CHANGE IN METHOD OF ACCOUNTING FROM THE ASSOCIATE OFFICES? .09 The Associate office will send a copy of the letter ruling, whether favorable or adverse, to the appropriate Service official in the operating division that has examination jurisdiction of the taxpayer’s tax return. This section provides the specific and additional procedures applicable to a request for a change in method of accounting under Rev. Proc. 2015-13, 2015-5 I.R.B. 419 (or any successor), as clarified and modified by Rev. Proc. 2015-33, 2015-24 I.R.B. 1067, as modified by Section 17.02 of Rev. Proc. 2016-1, 2016-1 I.R.B. 1, as modified by Rev. Proc. 2017-59, 2017-48 I.R.B. 543, as modified by Rev. Proc. 2021-26, 2021-22 I.R.B. 543, and as modified by Rev. Proc. 2021-34, 2021-35 I.R.B. 337, or other automatic change request procedures. A request for a change in method of accounting under Rev. Proc. 2015-13 (or any successor) or other automatic change request procedures is a type of request for a letter ruling. See section 2.01 of this revenue procedure. Automatic and non- automatic change in method of accounting r equests .01 Automatic change in method of accounting under Rev. Proc. 2015-13 (or any successor), or oth automatic change request procedures (1) Automatic change in method of accounting. Certain changes in methods of accounting must be made under automatic change request procedures. A change in method of accounting provided for in an automatic change request procedure must be made using that procedure if the er taxpayer requesting the change is within the scope of the procedure, the change is an automatic change for the requested year of the change, and the taxpayer is eligible to make the change. The Commissioner’s consent to an otherwise qualifying automatic change in method of accounting is granted only if the taxpayer timely complies with the applicable automatic change request procedures. But see section 9.19 of this revenue procedure concerning review by an Associate office and a field office. In general, a taxpayer requests an automatic change by filing a current Form 3115, Application for Change in Method of Accounting. January 3, 2023 46 Bulletin No. 2023–1 An application filed under the automatic change procedures in Rev. Proc. 2015-13 (or any successor) or other automatic change request procedure, and this revenue procedure, is hereinafter referred to as an “automatic change request.” See section 9.22 of this revenue procedure for a list of automatic change request procedures. See section 9.23 for a list of the sections and Appendices of this revenue procedure in addition to this section 9 that apply to an automatic change request. No user fee is required for a change made under an automatic change request procedure. Non-automatic change in method of accounting (2) Non-automatic change in method of accounting. If a change in method of accounting may not be made under an automatic change request procedure, the taxpayer may request a non- automatic letter ruling by filing a current Form 3115, Application for Change in Accounting Method, under the non-automatic change procedures in Rev. Proc. 2015-13 (or any successor), and this revenue procedure. A Form 3115 filed under Rev. Proc. 2015-13 (or any successor) and this revenue procedure for a non-automatic change request is hereinafter referred to as a “non- automatic Form 3115.” A taxpayer filing a non-automatic Form 3115 must submit the required user fee with the completed Form 3115. See section 15 and Appendix A of this revenue procedure for information about user fees. See section 9.23 for a list of the sections and Appendices of this revenue procedure in addition to this section 9 that apply to a non-automatic Form 3115. Ordinarily only one change in method of accounting on a Form 3115, Application for Change in Accounting Method, and a separate Form 3115 for each taxpayer and for each separate and distinct trade or business .02 Ordinarily, a taxpayer may request only one change in method of accounting on a Form 3115, Application for Change in Accounting Method. If the taxpayer wants to request a change in method of accounting for more than one unrelated item or submethod of accounting, the taxpayer must submit a separate Form 3115 for each unrelated item or submethod, except in certain situations in which the Service specifically permits certain unrelated changes to be included on a single Form 3115. For an example of such a situation, see section 15.01(3) of Rev. Proc. 2022-14, 2022-7 I.R.B. 502 (or its successor). A separate Form 3115 (and, therefore, a separate user fee pursuant to section 15 and Appendix A of this revenue procedure) must be submitted for each taxpayer and each separate trade or business of a taxpayer, including a qualified subchapter S subsidiary (QSub) or a single-member limited liability company (single-member LLC), requesting a change in method of accounting, except as specifically permitted or required in guidance published by the Service. See, e.g., section 15.07(4) of this revenue procedure. Information required with a Form 3115 Facts and other information .03 (1) Facts and other information requested on Form 3115 and in applicable revenue procedures. In general, a taxpayer requesting a change in method of accounting must file a current Form 3115, unless the procedures applicable to the specific type of change in method of accounting do not require a Form 3115 to be submitted. To be eligible for approval of the requested change in method of accounting, the taxpayer must provide all information requested on the Form 3115 and in its instructions and in Rev. Proc. 2015- 13 (or any successor), and, if applicable, the automatic change request procedure. In addition, the taxpayer must provide all information requested in the applicable sections of this revenue procedure, including a detailed and complete description of the item being changed and of the taxpayer’s trade(s) or business(es), the taxpayer’s present and proposed method for the item being changed, information regarding whether the taxpayer has claimed any federal tax credit relating to the cost being changed, information regarding whether the taxpayer is under examination, or before Appeals or a Federal court, and a summary of the computation of the net § 481(a) adjustment, along with an explanation of the methodology used to determine the adjustment, sufficient to demonstrate that the net § 481(a) adjustment is computed correctly. Bulletin No. 2023–1 47 January 3, 2023 For a non-automatic Form 3115 or an automatic change request specified in the instructions for line 16 of the Form 3115, the taxpayer must also include a full explanation of the legal basis and relevant authorities supporting the proposed method, and a detailed and complete description of the facts and explanation of how the law applies to the taxpayer’s situation. For a non-automatic Form 3115, the taxpayer must also include a statement of the applicant’s reasons for the proposed change, copies of all documents related to the proposed change, and a discussion of whether the law related to the request is uncertain or inadequately addresses the issue. The taxpayer must provide the requested information to be eligible for approval of the requested change in method of accounting. The taxpayer may be required to provide information specific to the requested change in method of accounting, such as an attached statement. The taxpayer must provide all information relevant to the requested change in method of accounting, even if not specifically requested, including an explanation of all material facts relevant to the requested change in method of accounting. See also sections 7.01(1) and 7.01(9) of this revenue procedure. Statement of authorities contrary to taxpayer’s views (2) Statement of contrary authorities. For a non-automatic Form 3115, the taxpayer is encouraged to inform the Associate office about, and discuss the implications of, any authority believed to be contrary to the proposed change in method of accounting, including statutes, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements. If the taxpayer does not furnish either contrary authorities or a statement that none exist, the Associate office may request submission of contrary authorities or a statement that none exist. Failure to comply with this request may result in the Associate office’s refusal to issue a change in method of accounting letter ruling. Documents (3) Copies of all contracts, agreements, and other documents. True copies of all contracts, agreements, and other documents relevant to the requested change in method of accounting must be submitted with a non-automatic Form 3115. Original documents should not be submitted because they become part of the Associate office’s file and will not be returned. Analysis of material facts (4) Analysis of material facts. When submitting any document with a Form 3115 or in a supplemental letter, the taxpayer must explain and provide an analysis of all material facts in the document. The taxpayer may not merely incorporate the document by reference. The analysis of the facts must include their bearing on the requested change in method of accounting and must specify the provisions that apply. Same issue in an earlier return under examination (5) Information regarding whether same issue is in an earlier return under examination. A Form 3115 must state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives, any earlier return of the taxpayer (or any return of a current or former consolidated group in which the taxpayer is or was a member) in which the taxpayer used the method of accounting being changed is under examination, before Appeals, or before a Federal court. See Rev. Proc. 2015-13 (or any successor). Issue previously submitted or currently pending (6) Statement regarding prior requests for a change in method of accounting and other pending requests. January 3, 2023 48 Bulletin No. 2023–1 (a) Other requests for a change in method of accounting within the past five years. A Form 3115 must state, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives, whether the taxpayer, a related party within the meaning of § 267 or § 707(b) (1), or a member of a current or former affiliated group of which the taxpayer is or was a member within the meaning of § 1504, or a predecessor requested or made within the past five years (including the year of the requested change), or is currently filing, any request for a change in method of accounting. If the statement is affirmative, for each separate and distinct trade or business, the Form 3115 must give a description of each request and the year of change and whether consent was obtained. If any application was withdrawn, not perfected, or denied, or if a Consent Agreement was sent to the taxpayer but was not signed and returned to the Associate office, or if the change was not made in the requested year of change, the Form 3115 must give an explanation. (b) Any other pending request(s). A Form 3115 must state, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives, whether the taxpayer, a related party within the meaning of § 267 or § 707(b)(1), or a member of a current or former affiliated group of which the taxpayer is or was a member within the meaning of § 1504, or a predecessor currently have pending any request (including any concurrently filed request) for a letter ruling, a change in method of accounting, or technical advice. If the statement is affirmative, the Form 3115 must give the name(s) of the taxpayer, identification number(s), the type of request (letter ruling, request for change in method of accounting, or request for technical advice), and the specific issues in each such request. Statement identifying pending legislation (7) Statement identifying pending legislation. At the time the taxpayer files a non-automatic Form 3115, the taxpayer must identify any pending legislation that may affect the proposed change in method of accounting. The taxpayer also must notify the Associate office if any such legislation is introduced after the request is filed but before a change in method of accounting letter ruling is issued. Authorized representatives (8) Authorized representatives. To appear before the Service in connection with a request for a change in method of accounting, the taxpayer’s authorized representative must be an attorney, a certified public accountant, an enrolled agent, an enrolled actuary, a person with a “Letter of Authorization,” an employee, general partner, bona fide officer, administrator, trustee, etc., as described in section 7.01(14) of this revenue procedure. Power of Attorney and Declaration of Representative (9) Power of Attorney and Declaration of Representative. Any authorized representative, whether or not enrolled to practice, must comply with Treasury Department Circular No. 230, which provides the rules for practice before the Service, and the conference and practice requirements of the Statement of Procedural Rules, which provide the rules for representing a taxpayer before the Service. See section 7.01(15) of this revenue procedure. A taxpayer should use Form 2848, Power of Attorney and Declaration of Representative, to provide the representative’s authority. Tax Information Authorization (10) Tax Information Authorization. A taxpayer may use Form 8821, Tax Information Authorization, to authorize an individual to receive a copy of the taxpayer’s change in method of accounting letter ruling and other related correspondence. If the taxpayer wishes to authorize a corporation, firm, organization, or partnership to receive the correspondence, an individual, identified by either name or title, must be specified on the Form 8821. A Form 8821 does not authorize the taxpayer’s appointee to advocate the taxpayer’s position or to otherwise represent the taxpayer before the Service. Bulletin No. 2023–1 49 January 3, 2023 Penalties of perjury statement (11) Penalties of perjury statement. (a) Format of penalties of perjury statement. A Form 3115, and any change to a Form 3115 submitted at a later time, must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined this application, including accompanying schedules and statements, and to the best of my knowledge and belief, the application contains all the relevant facts relating to the application, and it is true, correct, and complete.” See section 9.08(3) of this revenue procedure for the penalties of perjury statement required for submissions of additional information. (b) Signature by taxpayer. A Form 3115 must be signed in a manner consistent with section 7.01(13) of this revenue procedure by, or on behalf of, the taxpayer requesting the change by an individual who has personal knowledge of the facts of, and authority to bind the taxpayer in, such matters. For example, an officer must sign on behalf of a corporation, a general partner on behalf of a state law partnership, a member-manager on behalf of a limited liability company, a trustee on behalf of a trust, or an individual taxpayer on behalf of a sole proprietorship. If the taxpayer is a member of a consolidated group, a Form 3115 should be submitted on behalf of the taxpayer by the common parent and must be signed by a duly authorized officer of the common parent. Refer to the signature requirements set forth in the instructions for the current Form 3115 regarding those who are to sign. See also section 6.02(8) of Rev. Proc. 2015-13 (or any successor). (c) Signature by preparer. If a Form 3115 is prepared by an individual other than the taxpayer, the preparer must also sign the Form 3115 in a manner consistent with section 7.01(13) of this revenue procedure. A declaration of preparer (other than the taxpayer) is based on all information of which the preparer has any knowledge. .04 Additional pr ocedural information required in certain circumstances Recipients of original and copy of correspondence (1) Recipients of original and copy of change in method of accounting correspondence. The Service will send the signed original of the change in method of accounting letter ruling and other related correspondence to the taxpayer, and copies to the taxpayer’s representative, if so instructed on Form 2848. See section 7.02(2) of this revenue procedure for how to designate alternative routing of the copies of the letter ruling and other correspondence. (2) To request expedited handling. The Associate offices ordinarily process non-automatic Forms 3115 in order of the date received. A taxpayer with a compelling need to have a non- automatic Form 3115 processed on an expedited basis may request expedited handling. See section 7.02(4) of this revenue procedure for procedures regarding expedited handling. Expedited handling Requesting form of any document related to Form 3115 provided to taxpayer or taxpayer’s authorized representative (3) To request the receipt of the change in method of accounting letter ruling or any other correspondence related to a Form 3115 by fax, electronic facsimile, or encrypted email attachment. If the taxpayer wants a copy of the change in method of accounting letter ruling or any other correspondence related to a Form 3115, such as a request for additional information, to be provided to the taxpayer or the taxpayer’s authorized representative by fax, electronic facsimile, or encrypted email attachment, the taxpayer must submit a written request, preferably as part of the Form 3115. The request may be submitted at a later date, but it must be received prior to the mailing of correspondence other than the letter ruling and prior to the signing of the change in method of accounting letter ruling. The Service has the discretion to determine the form in which it will correspond with the taxpayer, but will generally comply with a taxpayer’s request for a particular form. January 3, 2023 50 Bulletin No. 2023–1 If the taxpayer requests to have correspondence relating to the Form 3115 provided by fax or electronic facsimile to the taxpayer or taxpayer’s authorized representative, the request must contain the fax number of the taxpayer or the taxpayer’s authorized representative to whom the correspondence is to be provided. A document other than the change in method of accounting letter ruling will be faxed by a branch representative. A change in method of accounting letter ruling may be faxed by either a branch representative or the Disclosure and Litigation Support Branch of the Legal Processing Division of the Office of Associate Chief Counsel (Procedure and Administration) (CC:PA:LPD:DS). If the taxpayer requests documents by encrypted email attachment, the request must specify which email encryption method is to be used and, if the taxpayer has not already provided the appropriate memorandums of understanding (MOUs) to use encrypted email attachments, must include those MOUs. See section 9.05(3) of this revenue procedure for acceptable email encryption methods and procedures. For purposes of § 301.6110-2(h), a change in method of accounting letter ruling is not issued until the change in method of accounting letter ruling is mailed. Requesting a conference (4) To request a conference. The taxpayer must complete the appropriate line on the Form 3115 to request a conference, or must request a conference in a later written communication, if an adverse response is contemplated by the Associate office. See section 11.03(1) of Rev. Proc. 2015-13 (or any successor), and sections 10.01 and 10.02 of this revenue procedure. Submitting non-automatic Forms 3115 .05 Non-automatic Forms 3115 may be submitted by mail, by electronic facsimile, or by encrypted email attachment. (1) Submission by mail. A taxpayer submitting a non-automatic Form 3115 by mail should submit the original to the appropriate address below. To use the paper method, first submit the full user fee payment set forth in Appendix A of this revenue procedure through www.pay.gov, and include a copy of the receipt for this payment with the request. See section 15.08 of this revenue procedure. If a private delivery service is not used, a taxpayer, including an exempt organization, must send the original completed Form 3115 to: Internal Revenue Service Attn: CC:PA:LPD:TSS P.O. Box 7604 Benjamin Franklin Station Washington, DC 20044 If a private delivery service is used, a taxpayer, including an exempt organization, must send the original completed Form 3115 to: Internal Revenue Service Attn: CC:PA:LPD:TSS Room 5336 1111 Constitution Ave., NW Washington, DC 20224 Bulletin No. 2023–1 51 January 3, 2023 For taxpayers, including an exempt organization, the original completed Form 3115 may be hand delivered between the hours of 8:00 a.m. and 4:00 p.m. to the courier’s desk at 1111 Constitution Ave., NW, Washington, DC. A receipt will be given at the courier’s desk. The package should be addressed to: Courier’s Desk Internal Revenue Service Attn: CC:PA:LPD:TSS, Room 5336 1111 Constitution Ave., NW Washington, DC 20224 (2) Submission by electronic facsimile. Taxpayers and their representatives are encouraged to use a secure electronic facsimile service for transmitting requests for advice. To use the secure electronic facsimile method, first submit the full user fee payment set forth in Appendix A of this revenue procedure through www.pay.gov, and include a copy of the receipt for this payment with the request. See section 15.08 of this revenue procedure. Transmit the Form 3115, along with a cover sheet, to the secure electronic facsimile line: (877) 773-4950 (3) Submission by encrypted email attachment. There are more risks associated with email than with electronic facsimile, such as the possibility that sensitive taxpayer information could be intercepted. Accordingly, the Service encourages taxpayers to use a secure electronic facsimile service for transmitting requests for advice. As an alternative, this section provides procedures for using encrypted email attachments for transmitting a non-automatic Form 3115. Taxpayers using encrypted email attachments may choose to use a compression utility compatible with SecureZIP (note that many open-source utilities are not compatible with SecureZIP), Adobe Acrobat Pro password encryption, or Microsoft Office 365 Protect Document to encrypt and send password-protected files. Because these programs do not encrypt the subject line or body of an email or the file name of the attachment, all sensitive taxpayer information, including the name of the taxpayer, should be included only in the encrypted attachment. These programs require that a sender create a password for the recipient to use to decrypt the attachments. The password should never be sent in the same email as the encrypted attachment. Instead, it should be provided to the Service in a separate email with a subject line that makes it easy to connect the password to the encrypted email. To use encrypted email attachments, first submit the full user fee payment set forth in Appendix A of this revenue procedure through www.pay.gov, and include a copy of the receipt for this payment with the request. See section 15.08 of this revenue procedure. A Form 3115 transmitted through email must be accompanied by two MOUs: the MOU in Appendix G of this revenue procedure, acknowledging the risks of using email to transmit sensitive taxpayer information, and the appropriate MOU in Appendix H, agreeing to the terms for using the chosen method of encryption to receive sensitive taxpayer information. These MOUs must be signed by the taxpayer, not the taxpayer’s representative, in a manner consistent with section 7.01(13) of this revenue procedure. A Counsel representative will countersign and return the second MOU to the requester prior to transmitting any other information by encrypted email attachments. January 3, 2023 52 Bulletin No. 2023–1 Transmit the Form 3115 to the following email address: Userfee@irscounsel.treas.gov .06 Automatic change request. The duplicate copy of an automatic Form 3115 generally is Submitting automatic Forms 31 15 submitted by mail. A taxpayer that is filing an automatic Form 3115 under the provisions of Rev. Proc. 2015-13 (or any successor) may alternatively submit the duplicate copy of the Form 3115 by fax. (1) Submission by mail. If the automatic change request procedure requires a taxpayer to file a duplicate copy of the completed Form 3115 for an automatic change request, and if a private delivery service is not used, send the duplicate copy of the automatic change request Form 3115 to: Internal Revenue Service Ogden, UT 84201 M/S 6111 If a private delivery service is used, send the duplicate copy of the automatic change request Form 3115 to: Internal Revenue Service 1973 N. Rulon White Blvd. Ogden, UT 84201 Attn: M/S 6111 (2) Submission by fax. Taxpayers submitting the duplicate copy of an automatic Form 3115 by fax should do so to the following fax number: (844) 249-8134 The submission should include a cover sheet with the following information: Subject: “Form 3115” Sender’s name, title, phone number, and address Taxpayer’s name Date Number of pages faxed (inclusive of cover sheet) A taxpayer should not include sensitive information on the cover sheet, such as the taxpayer’s Employer Identification Number or Social Security Number. Bulletin No. 2023–1 53 January 3, 2023 Technical Services Support Branch receives, initially controls, and refers the Form 3115 to the appropriate Associate office Additional information Reply period . 07 A non-automatic Form 3115 is received and controlled by the Technical Services Support Branch, Legal Processing Division of the Associate Chief Counsel (Procedure and Administration) (CC:PA:LPD:TSS) if the required user fee is submitted with the Form 3115. Once controlled, the Form 3115 is forwarded to the appropriate Associate office for assignment and processing. .08 (1) Reply period. (a) Non-automatic Form 3115 – 21-day rule. In general, for a non-automatic Form 3115, additional information requested by the Associate office and additional information furnished to the Associate office by telephone must be furnished in writing by mail, fax, or email within 21 calendar days from the date of the information request. The Associate office may impose a shorter reply period for a request for additional information made after an initial request. See section 10.06 of this revenue procedure for the 21-day rule for submitting information after any conference. (b) Automatic change request – 30-day rule. In general, for an automatic change request, additional information requested by the Associate office, and additional information furnished to the Associate office by telephone must be furnished in writing by mail, fax, or email within 30 calendar days from the date of the information request. The Associate office may impose a shorter reply period for a request for additional information made after an initial request. See section 10.06 of this revenue procedure for the 21-day rule for submitting information after any conference with the Associate office. Extension of reply period (2) Request for extension of reply period. (a) Non-automatic Form 3115. For a non-automatic Form 3115, an additional period, not to exceed 15 calendar days, to furnish information may be granted to a taxpayer. Any request for an extension of time must be made in writing and submitted before the end of the original 21-day period. If unusual circumstances close to the end of the 21-day period make a written request impractical, the taxpayer should notify the Associate office within the 21-day period that there is a problem and that the written request for extension will be provided shortly. An extension of the 21-day period will be granted only if approved by a branch reviewer. An extension of the 21-day period ordinarily will not be granted to furnish information requested on Form 3115. The taxpayer will be told promptly, and later in writing, of the approval or denial of the requested extension. If the extension request is denied, there is no right of appeal. (b) Automatic change request. For an automatic change request, an additional period, not to exceed 30 calendar days, to furnish information may be granted to a taxpayer. Any request for an extension of time must be made in writing and submitted before the end of the original 30-day period. If unusual circumstances close to the end of the 30-day period make a written request impractical, the taxpayer should notify the Associate office within the 30-day period that there is a problem and that the written request for extension will be coming soon. An extension of the 30-day period will be granted only if approved by a branch reviewer. An extension of the 30-day period ordinarily will not be granted to furnish information requested on Form 3115. The taxpayer will be told promptly of the approval or denial of the requested extension. If the extension request Penalties of perjury statement for additional information is denied, there is no right of appeal. (3) Penalties of perjury statement for additional information. Additional information submitted to the Associate office must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the January 3, 2023 54 Bulletin No. 2023–1 Identifying information included in additional information relevant facts relating to the request for the information, and such facts are true, correct, and complete.” This declaration must be signed in accordance with the requirements in section 9.03(11)(b) of this revenue procedure. (4) Identifying information included in additional information. The additional information should also include the taxpayer’s name, the case control number, and the name, office symbols, and room number of the Associate office representative who requested the information. The Associate office representative can provide the latter information to the taxpayer. Transmitting request and submitting additional information by fax, electronic facsimile, or encrypted email attachment (5) Transmitting request and submitting additional information by fax, electronic facsimile, or encrypted email attachment. To facilitate prompt action on a change in method of accounting ruling request, taxpayers may request that the Associate office request additional information by fax, electronic facsimile, or encrypted email attachment. See section 9.04(3) of this revenue procedure. Taxpayers may also submit additional information by fax, electronic facsimile, or encrypted email attachment as soon as the information is available. The Associate office representative who requests additional information can provide a fax or electronic facsimile number or email address to which the information can be faxed. Submitting additional information by mail (6) Submitting additional information by mail. (a) Address if private delivery service is not used. For a request for change in method of accounting under the jurisdiction of the Associate Chief Counsel (Income Tax and Accounting), if a private delivery service is not used, the additional information should be sent to: Internal Revenue Service ADDITIONAL INFORMATION Attn: [Name, office symbols, and room number of the Associate office representative who requested the information] P.O. Box 14095 Benjamin Franklin Station Washington, DC 20044 For any other request for change in method of accounting, if a private delivery service is not used, the additional information should be sent to: Internal Revenue Service ADDITIONAL INFORMATION Attn: [Name, office symbols, and room number of the Associate office representative who requested the information] P.O. Box 7604 Benjamin Franklin Station Washington, DC 20044 (b) Address if private delivery service is used. For a request for a change in method of accounting, if a private delivery service is used, the additional information should be sent to: Internal Revenue Service ADDITIONAL INFORMATION Bulletin No. 2023–1 55 January 3, 2023 Failure to timely submit additional information to the Associate office Attn: [Name, office symbols, and room number of the Associate office representative who requested the information] 1111 Constitution Ave., NW Washington, DC 20224 (7) Failure to timely submit additional information to the Associate office. (a) Non-automatic Form 3115. In the case of a non-automatic Form 3115, if the required information is not furnished to the Associate office within the reply period, the Form 3115 will not be processed and the case will be closed. The taxpayer or authorized representative will be so notified in writing. (b) Automatic change request. In the case of an automatic change request, if the required information is not furnished to the Associate office within the reply period, the request does not qualify for the automatic change request procedure. In such a case, the Associate office will notify the taxpayer that consent to make the change in method of accounting is not granted. (c) Submitting the additional information at a later date. If the taxpayer wants to submit the additional information at a later date, the taxpayer must submit it with a new completed Form 3115 (and user fee, if applicable) for a year of change for which such new Form 3115 is timely filed under the applicable change in method of accounting procedure. Circumstances in which the taxpayer must notify the Associate office .09 For a non-automatic Form 3115, the taxpayer must promptly notify the Associate office if, after the Form 3115 is filed but before a change in method of accounting letter ruling is issued, the taxpayer knows that— (1) a field office has started an examination of the present or proposed accounting; (2) a field office has started an examination of the proposed year of change; (3) legislation that may affect the change in method of accounting has been introduced, see section 9.03(7) of this revenue procedure; or (4) another letter ruling request (including another Form 3115) has been submitted by the taxpayer, a related party within the meaning of § 267 or § 707(b)(1), or a member of an affiliated group of which the taxpayer is a member within the meaning of § 1504. Determines if proposed method of accounting can be modified to obtain favorable letter ruling Near the completion of processing the Form 3115, advises the taxpayer if the Associate office will rule adversely and offers the taxpayer the opportunity to withdraw Form 3115 .10 For a non-automatic Form 3115, if a less than fully favorable change in method of accounting letter ruling is indicated, the branch representative will tell the taxpayer whether minor changes in the proposed method of accounting would bring about a favorable ruling. The branch representative will not suggest precise changes that materially alter a taxpayer’s proposed method of accounting. .11 Generally, after a conference is held (or offered, in the event no conference is held) and before issuing any change in method of accounting letter ruling that is adverse to the requested change in method of accounting, the taxpayer will be offered the opportunity to withdraw the Form 3115. See sections 9.12 and 10 of this revenue procedure. If, within 10 calendar days of the notification by the branch representative, the taxpayer or the taxpayer’s representative does not notify the branch representative of a decision to withdraw the Form 3115, the adverse change in January 3, 2023 56 Bulletin No. 2023–1 method of accounting letter ruling will be issued unless an extension is granted. See section 15.10 for information regarding refunds of user fees. .12 Non-automatic Form 3115 may be withdrawn or Associate office may decline to issue a change in method of accounting letter ruling In general (1) In general. A taxpayer may withdraw a non-automatic Form 3115 at any time before the change in method of accounting letter ruling is signed by the Associate office. The Form 3115, correspondence, and any documents relating to the Form 3115 that is withdrawn or for which the Associate office declines to issue a letter ruling will not be returned to the taxpayer. See section 9.03(3) of this revenue procedure. In appropriate cases, the Service may publish its conclusions in a revenue ruling or revenue procedure. Notification of appropriate Service official (2) Notification of appropriate Service official. If a taxpayer withdraws, or the Associate office declines to grant (for any reason), a request to change a method of accounting, the Associate office will notify, in writing, the appropriate Service official in the operating division that has examination jurisdiction of the taxpayer’s tax return and the Manager of the Methods of Accounting and Timing Practice Network, and may give its views on the issues in the request to the Service official to consider in any later examination of the return. If the written notification to the Service official provides more than the fact that the request was withdrawn and the Associate office was tentatively adverse, or that the Associate office declines to grant a change in method of accounting, the memorandum may constitute Chief Counsel Advice, as defined in § 6110(i)(1), and may be subject to disclosure under § 6110. How to check status of a pending non-automatic Form 3115 Service is not bound by informal opinion .13 The taxpayer or the taxpayer’s authorized representative may obtain information regarding the status of a non-automatic Form 3115 by calling the person whose name and telephone number are shown on the acknowledgement of receipt of the Form 3115. .14 The Service will not be bound by any informal opinion expressed by the branch representative or any other Service representative, and such an opinion cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). Single letter ruling issued to a taxpayer or consolidated group for qualifying identical change in method of accounting Letter ruling ordinarily not issued for one of two or more interrelated items or submethods Consent Agreement .15 For a non-automatic Form 3115 qualifying under section 15.07(4) for the user fee provided in paragraph (A)(5)(b) of Appendix A of this revenue procedure for identical changes in method of accounting, the Associate office generally will issue a single letter ruling on behalf of all applicants on the Form 3115 that are the subject of the request. .16 If two or more items or submethods of accounting are interrelated, the Associate office ordinarily will not issue a letter ruling on a change in method of accounting involving only one of the items or submethods. .17 Ordinarily, for a non-automatic Form 3115, the Commissioner’s permission to change a taxpayer’s method of accounting is set forth in a letter ruling (original and a Consent Agreement copy). If transmitting electronically, the issuing office may sign the letter ruling and the Consent Agreement copy electronically. See section 9.04(3) of this revenue procedure. If the taxpayer agrees to the terms and conditions contained in the change in method of accounting letter ruling, the taxpayer must sign and date the Consent Agreement copy of the letter ruling in the appropriate space. The Consent Agreement copy must be signed in a manner consistent with section 7.01(13) Bulletin No. 2023–1 57 January 3, 2023 of this revenue procedure by an individual with authority to bind the taxpayer in such matters. The Consent Agreement copy must not be signed by the taxpayer’s representative. The signed copy of the letter ruling will constitute an agreement (Consent Agreement) within the meaning of Treas. Reg. § 1.481-4(b). The signed Consent Agreement copy of the letter ruling must be returned to the Associate office within 45 calendar days of the date of the letter ruling. The signed Consent Agreement copy may be submitted under the procedures set forth above for submission of additional information. See section 9.04(3) and 9.08(5) of this revenue procedure. In addition, a copy of the signed Consent Agreement generally must be attached to the taxpayer’s income tax return for the year of change. See section 11.03(2)(a) of Rev. Proc. 2015-13 (or any successor). A taxpayer filing its return electronically should attach the Consent Agreement as a PDF file named “Form3115Consent.” If the taxpayer has filed its income tax return for the year of change before the letter ruling has been received and the Consent Agreement has been signed and returned, the copy of the signed Consent Agreement should be attached to the amended return for the year of change that the taxpayer files to implement the change in method of accounting. A taxpayer must secure the consent of the Commissioner before changing a method of accounting for Federal income tax purposes. See Treas. Reg. § 1.446-1(e)(2)(i). For a change in method of accounting requested on a non-automatic Form 3115, a taxpayer has secured the consent of the Commissioner when the taxpayer timely signs and returns the Consent Agreement copy of the letter ruling from the Associate office granting permission to make the change in method of accounting and otherwise complies with Rev. Proc. 2015-13 (or any successor). A taxpayer that timely files a non-automatic Form 3115 and takes the requested change in method of accounting into account in its federal income tax return for the year of change (and any subsequent taxable year) prior to receiving a letter ruling granting consent for that change has made a change in method of accounting without obtaining the consent of the Commissioner as required by § 446(e) (an “unauthorized change”). As provided in section 12.02 of Rev. Proc. 2015- 13 (or any successor), the Director may determine when a change is not made in compliance with all applicable provisions of Rev. Proc. 2015-13 (or any successor) and may deny the unauthorized change. However, the Commissioner’s consent, issued subsequent to the requested year of change, applies back to the year of change (and any subsequent taxable year) as of the date of the letter ruling granting consent for that change if the taxpayer timely signs and returns the Consent Agreement copy and implements the change in accordance with all applicable provisions of Rev. Proc. 2015-13 (or any successor) and section 11 of this revenue procedure. If the Commissioner does not grant consent under Rev. Proc. 2015-13 (or any successor) for the change in method of accounting taken into account by the taxpayer, the taxpayer is subject to any interest, penalties, or other adjustments resulting from improper implementation of the change. See § 446(f). A taxpayer who timely files a non-automatic Form 3115 and takes the requested change into account in the taxpayer’s Federal income tax return for the year of change (and any subsequent taxable year), prior to receiving the letter ruling granting permission for the requested change, may nevertheless rely on the letter ruling received from the Associate office after it is received, as provided in section 9.19 of this revenue procedure. If, however, the requested change is modified or is withdrawn, denied, or similarly closed without the Associate office having granted consent, taxpayers are not relieved of any interest, penalties, or other adjustments resulting from improper implementation of the change. A copy of the change in method of accounting letter ruling is sent to appropriate Service officials .18 The Associate office will send a copy of each change in method of accounting letter ruling, whether favorable or adverse, to the appropriate Service official in the operating division that has examination jurisdiction of the taxpayer’s tax return and the Manager of the Methods of Accounting and Timing Practice Network. January 3, 2023 58 Bulletin No. 2023–1 Consent to change a method of accounting may be relied on subject to limitations . 19 A taxpayer may rely on a change in method of accounting letter ruling received from the Associate office, subject to certain conditions and limitations. See sections 7, 8, 10, 11, and 12 of Rev. Proc. 2015-13 (or any successor). A qualifying taxpayer complying timely with an automatic change request procedure may rely on the consent of the Commissioner as provided in the automatic change request procedure to change the taxpayer’s method of accounting, subject to certain conditions and limitations. See generally sections 7, 8, 10, 11, and 12 of Rev. Proc. 2015-13 (or any successor). An Associate office may review a Form 3115 filed under an automatic change request procedure and will notify the taxpayer if additional information is needed or if consent is not granted to the taxpayer for the requested change. See section 11 of Rev. Proc. 2015-13 (or any successor). Further, the field office that has jurisdiction over the taxpayer’s return may review the Form 3115. See section 12 of Rev. Proc. 2015-13 (or any successor). .20 A taxpayer may not rely on a change in method of accounting letter ruling issued to another taxpayer. See § 6110(k)(3). Change in method of accounting letter ruling does not apply to another taxpayer Associate office discretion to permit requested change in method of accounting . 21 The Associate office reserves the right to decline to process any non-automatic Form 3115 in situations in which it would not be in the best interest of sound tax administration to permit the requested change or it would not clearly reflect income. In this regard, the Associate office will consider whether the change in method of accounting would clearly and directly frustrate compliance efforts of the Service in administering the income tax laws. See section 11.02 of Rev. Proc. 2015-13 (or any successor). List of automatic change in method of accounting request procedures .22 For procedures regarding requests for an automatic change in method of accounting, refer to the following published automatic change request procedures. The Commissioner’s consent to an otherwise qualifying automatic change in method of accounting is granted only if the taxpayer complies timely with the applicable automatic change request procedure. The automatic change request procedures for obtaining a change in method of accounting include: (1) Rev. Proc. 2015-13 (or any successor). Rev. Proc. 2015-13 applies to the changes in method of accounting described in Rev. Proc. 2022-14, 2022-7 I.R.B. 502, as modified by Rev. Proc. 2022-23, 2022-18 I.R.B. 1052 (or any successor). (2) The following automatic change request procedures, which require a completed Form 3115, provide both the procedures under which a change may be made automatically and the procedures under which such change must be made: Treas. Reg. § 1.166-2(d)(3) (bank conformity for bad debts); Treas. Reg. § 1.458-1 and -2 (exclusion for certain returned magazines, paperbacks, or records); Rev. Proc. 97-43, 1997-2 C.B. 494 (§ 475 - electing out of certain exemptions from securities dealer status); and Rev. Proc. 91-51, 1991-2 C.B. 779 (§ 1286 - certain taxpayers under examination that sell mortgages and retain rights to service the mortgages). Bulletin No. 2023–1 59 January 3, 2023 The following automatic change request procedures, which do not require a completed Form 3115, provide the type of change in method of accounting that may be made automatically and also provide the procedures under which such change must be made: Notice 96-30, 1996-1 C.B. 378 (§ 446 - change to comply with Statement of Financial Accounting Standards No. 116); Rev. Proc. 92-29, 1992-1 C.B. 748 (§ 461 - change in real estate developer’s method for including costs of common improvements in the basis of property sold); Rev. Proc. 98-58, 1998-2 C.B. 712 (certain taxpayers seeking to change to the installment method of accounting under § 453 for alternative minimum tax purposes for certain deferred payment sales contracts relating to property used or produced in the trade or business of farming); Treas. Reg. § 1.472-2 (taxpayers changing to the last-in, first-out (LIFO) inventory method); Section 585(c) and Treas. Reg. §§ 1.585-6 and 1.585-7 (large bank changing from the reserve method of § 585); and Rev. Proc. 92-67, 1992-2 C.B. 429 (election under § 1278(b) to include market discount in income currently or election under § 1276(b) to use constant interest rate to determine accrued market discount). (4) See Appendix F for the list of revenue procedures for automatic changes in accounting period. Other sections of this revenue procedure that are applicable to Form 3115 .23 In addition to this section 9, the following sections of this revenue procedure apply to automatic change requests and non-automatic change requests: 1 (purpose of this revenue procedure); 2.01 (definition of “letter ruling”); 2.02 (definition of “closing agreement”); 2.05 (oral guidance); 3.01 (issues under the jurisdiction of the Associate Chief Counsel (Corporate)); 3.02 (issues under the jurisdiction of the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes)); 3.03 (issues under the jurisdiction of the Associate Chief Counsel (Financial Institutions and Products)); 3.04 (issues under the jurisdiction of the Associate Chief Counsel (Income Tax and Accounting)); January 3, 2023 60 Bulletin No. 2023–1 3.05 (issues under the jurisdiction of the Associate Chief Counsel (International)); 3.06 (issues under the jurisdiction of the Associate Chief Counsel (Passthroughs and Special Industries)); 5.03(2) (period of limitation when filing a request for extensions of time for making an election or for other relief under § 301.9100); 6.02 (letter rulings ordinarily not issued in certain areas because of the factual nature of the problem); 6.05 (letter rulings ordinarily not issued to business associations or groups); 6.06 (letter rulings ordinarily not issued where the request does not address the tax status, liability, or reporting obligations of the requester); 6.08 (letter rulings ordinarily not issued on Federal tax consequences of proposed legislation); 6.10 (letter rulings not issued on frivolous issues); 6.12 (letter rulings not issued on alternative plans or hypothetical situation); 7.01(1) (statement of facts and other information); 7.01(10) (statement of supporting authorities); 7.01(14) (authorized representatives); 7.01(15) (Power of Attorney and Declaration of Representative); 7.02(2) (power of attorney used to indicate recipient of a copy or copies of a letter ruling or a determination letter); 7.02(4) (expedited handling); 7.05(2) (notify Associate office if a return, amended return, or claim for refund is filed while request is pending and attach request to the return); 8.01 (receipt and control of the request, and referral to the appropriate Associate office); 8.02 (contact taxpayer within 21 calendar days); 8.04 (not bound by informal opinion expressed); Bulletin No. 2023–1 61 January 3, 2023 10 (scheduling conferences); 15 (user fees); 16 (significant changes to prior revenue procedure); 17 (effect of this revenue procedure on other documents); 18 (effective date of this revenue procedure); Appendix A (schedule of user fees); and Appendix F (revenue procedures and notices regarding letter ruling requests relating to specific Code sections and subject matters). SECTION 10. HOW ARE CONFERENCES FOR LETTER RULINGS SCHEDULED? Schedules a confer ence if requested by taxpayer . 01 A taxpayer may request a conference regarding a letter ruling request. Normally, a conference is scheduled only when the Associate office considers it to be helpful in deciding the case or when an adverse decision is indicated. If conferences are being arranged for more than one request for a letter ruling involving the same taxpayer, they will be scheduled so as to cause the least inconvenience to the taxpayer. As stated in sections 7.02(6) and 9.04(4) of this revenue procedure, a taxpayer who wants to have a conference on the issue or issues involved should indicate this in writing when, or soon after, filing the request. If a conference has been requested, the taxpayer or the taxpayer’s representative will be notified by telephone, if possible, of the time and place of the conference, which must then be held within 21 calendar days after this contact. Instructions for requesting an extension of the 21-day period and notifying the taxpayer or the taxpayer’s representative of the Associate office’s approval or denial of the request for extension are the same as those explained in section 8.05(2) (or section 9.08(2)(a) for a change in method of accounting request) of this revenue procedure regarding providing additional information. Permits taxpayer one conference of right .02 A taxpayer is entitled, as a matter of right, to only one conference in the Associate office, except as explained under section 10.05 of this revenue procedure. This conference is normally held at the branch level and is attended by a person who has the authority to sign the letter ruling in his or her own name or for the branch chief. When more than one branch has taken an adverse position on an issue in a letter ruling request or when the position ultimately adopted by one branch will affect that adopted by another, a representative from each branch with the authority to sign in his or her own name or for the branch chief will attend the conference. If more than one subject is to be discussed at the conference, the discussion will constitute a conference on each subject. January 3, 2023 62 Bulletin No. 2023–1 To have a thorough and informed discussion of the issues, the conference usually will be held after the branch has had an opportunity to study the case. At the request of the taxpayer, the conference of right may be held earlier. No taxpayer has a right to appeal the action of a branch to an Associate Chief Counsel or to any other official of the Service. But see section 10.05 of this revenue procedure for situations in which the Associate office may offer additional conferences. In employment tax matters, if the service recipient (the firm) requests the letter ruling, the firm is entitled to a conference. If the worker requests the letter ruling, both the worker and the firm are entitled to a conference. See section 5.10 of this revenue procedure. Disallows verbatim recording of conferences Makes tentative recommendations on substantive issues .03 Because conference procedures are informal, no tape, stenographic, or other verbatim recording of a conference may be made by any party. .04 The senior Associate office representative present at the conference ensures that the taxpayer has the opportunity to present views on all the issues in question. An Associate office representative explains the Associate office’s tentative decision on the substantive issues and the reasons for that decision. If the taxpayer asks the Associate office to limit the retroactive effect of any letter ruling or limit the revocation or modification of a prior letter ruling, an Associate office representative will discuss the recommendation concerning this issue and the reasons for the recommendation. The Associate office representatives will not make a commitment regarding the conclusion that the Associate office will finally adopt. May offer additional conferences .05 The Associate office will offer the taxpayer an additional conference if, after the conference of right, an adverse holding is proposed on a new issue or on the same issue but on different grounds from those discussed at the first conference. There is no right to another conference when a proposed holding is reversed at a higher level with a result less favorable to the taxpayer, if the grounds or arguments on which the reversal is based were discussed at the conference of right. The limit on the number of conferences to which a taxpayer is entitled does not prevent the Associate office from offering additional conferences, including conferences with an official higher than the branch level, if the Associate office decides they are needed. These conferences are not offered as a matter of course simply because the branch has reached an adverse decision. In general, conferences with higher level officials are offered only if the Associate office determines that the case presents significant issues of tax policy or tax administration and that the consideration of these issues would be enhanced by additional conferences with the taxpayer. Requires written confirmation of information presented at conference .06 The taxpayer should furnish to the Associate office any additional data, reasoning, precedents, etc., that were proposed by the taxpayer and discussed at the conference but not previously or adequately presented in writing. The taxpayer must furnish the additional information within 21 calendar days from the date of the conference. If the additional information is not received within that time, a letter ruling will be issued on the basis of the information on hand or, if appropriate, no ruling will be issued. See section 8.05 of this revenue procedure for instructions on submission of additional information for a letter ruling request other than a change in method of accounting request. See section 9.08 of this revenue procedure for instructions on submitting additional information for a change in method of accounting request. Bulletin No. 2023–1 63 January 3, 2023 May schedule a pre- submission conference . 07 Sometimes it will be advantageous to both the Associate office and the taxpayer to hold a conference before the taxpayer submits the letter ruling request to discuss substantive or procedural issues relating to a proposed transaction. These conferences are held only if the identity of the taxpayer is provided to the Associate office, only if the taxpayer actually intends to make a request, only if the request involves a matter on which a letter ruling is ordinarily issued, and only at the discretion of the Associate office and as time permits. For example, a pre- submission conference will not be held on an income tax issue if, at the time the pre-submission conference is requested, the identical issue is involved in the taxpayer’s return for an earlier period and that issue is being examined by a field office. See section 6.01(1) of this revenue procedure. A letter ruling request submitted following a pre-submission conference will not necessarily be assigned to the branch that held the pre-submission conference. Also, when a letter ruling request is not submitted following a pre-submission conference, the Associate office may notify, by memorandum, the appropriate Service officials in the operating division that has examination jurisdiction of the taxpayer’s tax return and may give its views on the issues raised during the pre-submission conference. For LB&I taxpayers, a copy of the memorandum will be sent to the Assistant Deputy Commissioner, Compliance Integration. This memorandum may constitute Chief Counsel Advice, as defined in § 6110(i), and may be subject to disclosure under § 6110. (1) Taxpayer may request a pre-submission conference in writing or by telephone. A taxpayer or the taxpayer’s representative may request a pre-submission conference in writing or by telephone. If the taxpayer’s representative is requesting the pre-submission conference, a power of attorney is required. A taxpayer should use Form 2848, Power of Attorney and Declaration of Representative, to provide the representative’s authority. If multiple taxpayers and/or their authorized representatives will attend or participate in the pre-submission conference, cross powers of attorney (or, as appropriate, tax information authorizations) are required. If the taxpayer’s representative is requesting the pre-submission conference by telephone, the Associate office’s representative (see list of phone numbers below) will provide the fax number to send the power of attorney (or, as appropriate, tax information authorizations) and any other necessary information prior to scheduling the pre-submission conference. The request must identify the taxpayer and briefly explain the primary issue so it can be assigned to the appropriate branch. If submitted in writing, the request should also identify the Associate office expected to have jurisdiction over the request for a letter ruling. A written request for a pre-submission conference should be sent to the appropriate address listed in section 7.04 of this revenue procedure. To request a pre-submission conference by telephone, call: (a) (202) 317-3181 (not a toll-free call) for matters under the jurisdiction of the Office of Associate Chief Counsel (Corporate); (b) (202) 317-6000 (not a toll-free call) for matters under the jurisdiction of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes); (c) (202) 317-3900 (not a toll-free call) for matters under the jurisdiction of the Office of Associate Chief Counsel (Financial Institutions and Products); (d) (202) 317-7002 (not a toll-free call) for matters under the jurisdiction of the Office of Associate Chief Counsel (Income Tax and Accounting); (e) (202) 317-3800 (not a toll-free call) for matters under the jurisdiction of the Office of Associate Chief Counsel (International); January 3, 2023 64 Bulletin No. 2023–1 (f) (202) 317-3100 (not a toll-free call) for matters under the jurisdiction of the Office of Associate Chief Counsel (Passthroughs and Special Industries); or (g) (202) 317-3400 (not a toll-free call) for matters under the jurisdiction of the Office of Associate Chief Counsel (Procedure and Administration). (2) Pre-submission conferences held in person or by telephone. Depending on the circumstances, pre-submission conferences may be held in person at the Associate office or may be conducted by telephone. (3) Certain information required to be submitted to the Associate office prior to the pre- submission conference. Generally, the taxpayer will be asked to provide a statement of whether the issue is an issue on which a letter ruling is ordinarily issued and a draft of the letter ruling request or other detailed written statement explaining the proposed transaction, issue, and legal analysis, before scheduling the pre-submission conference. The Associate office will allow taxpayers to submit a statement after the conference is scheduled at its discretion. If the taxpayer’s authorized representative will attend or participate in the pre-submission conference, a power of attorney is required. (4) Discussion of substantive issues is not binding on the Service. Any discussion of substantive issues at a pre-submission conference is advisory only, is not binding on the Service in general or on the Office of Chief Counsel in particular, and cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). May schedule a conference to be held by telephone .08 Depending on the circumstances, conferences, including conferences of right and pre- submission conferences, may be held by telephone. This may occur, for example, when a taxpayer wants a conference of right but believes that the issue involved does not warrant incurring the expense of traveling to Washington, DC, or if it is believed that scheduling an in-person conference of right will substantially delay the ruling process. If a taxpayer makes such a request, the branch reviewer will decide if it is appropriate in the particular case to hold a conference by telephone. If the request is approved, the taxpayer will be advised when to call the Associate office representatives (not a toll-free call). SECTION 11. WHAT EFFECT WILL A LETTER RULING HAVE? May be relied on subject to limitations Will not apply to another taxpayer . 01 A taxpayer ordinarily may rely on a letter ruling received from the Associate office subject to the conditions and limitations described in this section. .02 A taxpayer may not rely on a letter ruling issued to another taxpayer. See § 6110(k)(3). However, shareholders and security holders of a corporation may rely on a letter ruling issued to the corporation for the limited purpose of determining the proper treatment of directly related tax items. For example, a letter ruling issued to a corporation with respect to the reorganization of that corporation may be relied upon by the corporation’s shareholders in determining their basis in the stock of the corporation following the reorganization. See also section 11.06(3) of this revenue procedure. Bulletin No. 2023–1 65 January 3, 2023 Will be used by a field office in examining the taxpayer’s return . 03 When determining a taxpayer’s liability, the field office must ascertain whether— (1) the conclusions stated in the letter ruling are properly reflected in the return; (2) the representations upon which the letter ruling was based reflect an accurate statement of the controlling facts; (3) the transaction was carried out substantially as proposed; and (4) there has been any change in the law that applies to the period during which the transaction or continuing series of transactions were consummated. If, when determining the liability, the field office finds that a letter ruling should be revoked or modified, the findings and recommendations of the field office will be forwarded through the appropriate Director to the Associate office for consideration before further action is taken by the field office. Such a referral to the Associate office will be treated as a request for technical advice and the provisions of Rev. Proc. 2023-2, this Bulletin, relating to requests for technical advice will be followed. See section 13.02 of Rev. Proc. 2023-2. Otherwise, the field office should apply the letter ruling in determining the taxpayer’s liability. If a field office having jurisdiction over a return or other matter proposes to reach a conclusion contrary to a letter ruling previously issued to the taxpayer, it should coordinate the matter with the Associate office. May be revoked or modified if found to be in error or there has been a change in law .04 Unless it was part of a closing agreement as described in section 2.02 of this revenue procedure, a letter ruling found to be in error or not in accord with the current views of the Service may be revoked or modified. If a letter ruling is revoked or modified, the revocation or modification applies to all years open under the period of limitation unless the Service uses its discretionary authority under § 7805(b) to limit the retroactive effect of the revocation or modification. A letter ruling may be revoked or modified by— (1) a letter giving notice of revocation or modification to the taxpayer to whom the letter ruling was issued; (2) the enactment of legislation or ratification of a tax treaty; (3) a decision of the United States Supreme Court; (4) the issuance of temporary or final regulations; or (5) the issuance of a revenue ruling, revenue procedure, notice, or other statement published in the Internal Revenue Bulletin. Consistent with these provisions, if a letter ruling relates to a continuing action or a series of actions, it ordinarily will be applied until any one of the events described above occurs. Publication of a notice of proposed rulemaking will not affect the application of any letter ruling issued under this revenue procedure. January 3, 2023 66 Bulletin No. 2023–1 Letter ruling revoked or modified based on material change in facts applied retroactively Where a letter ruling is revoked or modified by a letter to the taxpayer, the letter will state whether the revocation or modification is retroactive. Where a letter ruling is revoked or modified by the issuance of final or temporary regulations or by the publication of a revenue ruling, revenue procedure, notice, or other statement in the Internal Revenue Bulletin, the document may contain a statement as to its retroactive effect on letter rulings. A letter ruling may be revoked even if the subject of the letter ruling is a matter that the Service currently does not issue rulings on. .05 An Associate office will revoke or modify a letter ruling and apply the revocation retroactively to the taxpayer for whom the letter ruling was issued or to a taxpayer whose tax liability was directly involved in the letter ruling if— (1) there has been a misstatement or omission of controlling facts; (2) the facts at the time of the transaction are materially different from the controlling facts on which the letter ruling was based; or (3) the transaction involves a continuing action or series of actions and the controlling facts change during the course of the transaction. Not otherwise generally revoked or modified retroactively .06 Where the revocation or modification of a letter ruling is for reasons other than a change in facts as described in section 11.05 of this revenue procedure, it will generally not be applied retroactively to the taxpayer for whom the letter ruling was issued or to a taxpayer whose tax liability was directly involved in the letter ruling provided that— (1) there has been no change in the applicable law; (2) the letter ruling was originally issued for a proposed transaction; and (3) the taxpayer directly involved in the letter ruling acted in good faith in relying on the letter ruling, and revoking or modifying the letter ruling retroactively would be to the taxpayer’s detriment. For example, the tax liability of each shareholder is directly involved in a letter ruling on the reorganization of a corporation. Depending on all facts and circumstances, the shareholders’ reliance on the letter ruling may be in good faith. The tax liability of a member of an industry, however, is not directly involved in a letter ruling issued to another member of the same industry. Therefore, a nonretroactive revocation or modification of a letter ruling to one member of an industry will not extend to other members of the industry who have not received letter rulings. By the same reasoning, a tax practitioner may not extend to one client the non-retroactive application of a revocation or modification of a letter ruling previously issued to another client. If a letter ruling is revoked or modified by a letter to the taxpayer with retroactive effect, the letter to the taxpayer will, except in fraud cases, state the grounds on which the letter ruling is being revoked or modified and explain the reasons why it is being revoked or modified retroactively. Retroactive effect of revocation or modification applied to a particular transaction .07 A letter ruling issued on a particular transaction represents a holding of the Service on that transaction only. It will not apply to a similar transaction in the same year or any other year. Except in unusual circumstances, the application of that letter ruling to the transaction will not be affected by the later issuance of regulations (either temporary or final) if conditions (1) through (3) in section 11.06 of this revenue procedure are met. Bulletin No. 2023–1 67 January 3, 2023 Retroactive effect of revocation or modification applied to a continuing action or series of actions .08 If a letter ruling is issued covering a continuing action or series of actions and the letter ruling is later found to be in error or no longer in accord with the position of the Service, the appropriate Associate Chief Counsel ordinarily will limit the retroactive effect of the revocation or modification to a date that is not earlier than that on which the letter ruling is revoked or modified. For example, the retroactive effect of the revocation or modification of a letter ruling covering a continuing action or series of actions ordinarily would be limited in the following situations when the letter ruling is in error or no longer in accord with the position of the Service: (1) A taxpayer received a letter ruling that certain payments are excludable from gross income for Federal income tax purposes. The taxpayer ordinarily would be protected only for the payment received after the letter ruling was issued and before the revocation or modification of the letter ruling. (2) A taxpayer rendered a service or provided a facility that is subject to the excise tax on services or facilities and, in relying on a letter ruling received, it did not pass the tax on to the user of the service or the facility. (3) An employer incurred liability under the Federal Insurance Contributions Act but, in relying on a letter ruling received, neither collected the employee tax nor paid the employee and employer taxes under the Federal Insurance Contributions Act. The retroactive effect would be limited for both the employer and employee tax. The limitation would be conditioned on the employer furnishing wage data, as may be required by § 31.6011(a)-1 of the Treasury Regulations. Generally not retroactively revoked or modified if related to sale or lease subject to excise tax .09 A letter ruling holding that the sale or lease of a particular article is subject to the manufacturer’s excise tax or the retailer’s excise tax may not retroactively revoke or modify an earlier letter ruling holding that the sale or lease of such an article was not taxable if the taxpayer to whom the letter ruling was issued, in relying on the earlier letter ruling, gave up possession or ownership of the article without passing the tax on to the customer. See § 1108(b), Revenue Act of 1926. May be retroactively revoked or modified when transaction is entered into before the issuance of the letter ruling Taxpayer may request that retroactive effect of revocation or modification be limited .10 A taxpayer is not protected against retroactive revocation or modification of a letter ruling involving a transaction completed before the issuance of the letter ruling or involving a continuing action or series of actions occurring before the issuance of the letter ruling, because the taxpayer did not enter into the transaction relying on a letter ruling. .11 Under § 7805(b), the Service may prescribe any extent to which a revocation or modification of a letter ruling will be applied without retroactive effect. A taxpayer to whom a letter ruling has been issued may request that the appropriate Deputy Associate Chief Counsel limit the retroactive effect of any revocation or modification of the letter ruling. For letter rulings governed by Rev. Proc. 2023-4, this Bulletin, a taxpayer to whom a letter ruling has been issued by the Commissioner, Tax Exempt and Government Entities, may request limiting the retroactive effect of any revocation or modification of the letter ruling pursuant to the procedures set forth in section 29 of Rev. Proc. 2023-4. Format of request (1) Request for relief under § 7805(b) must be made in required format. A request to limit the retroactive effect of the revocation or modification of a letter ruling must be in the general form of, and meet the general requirements for, a letter ruling request, as set forth in section 7 of this revenue procedure. Specifically, the request must also January 3, 2023 68 Bulletin No. 2023–1 (a) state that it is being made under § 7805(b); (b) state the relief sought; (c) explain the reasons and arguments in support of the relief requested (including a discussion of section 11.05 of this revenue procedure, the three items listed in section 11.06 of this revenue procedure, and any other factors as they relate to the taxpayer’s particular situation); and (d) include any documents bearing on the request. A request that the Service limit the retroactive effect of a revocation or modification of a letter ruling may be made in the form of a separate request for a letter ruling when, for example, a revenue ruling has the effect of modifying or revoking a letter ruling previously issued to the taxpayer or when the Service notifies the taxpayer of a change in position that will have the effect of revoking or modifying the letter ruling. When notice is given by the field office, during an examination of the taxpayer’s return, or by Appeals, during consideration of the taxpayer’s return before Appeals, a request to limit retroactive effect must be made in the form of a request for technical advice as explained in section 14.02 of Rev. Proc. 2023-2, this Bulletin. When germane to a pending letter ruling request, a request to limit the retroactive effect of a revocation or modification of a letter ruling may be made as part of the request for the letter ruling, either initially or at any time before the letter ruling is issued. When a letter ruling that concerns a continuing transaction is revoked or modified by, for example, a subsequent revenue ruling, a request to limit retroactive effect must be made before the examination of the return that contains the transaction that is the subject of the letter ruling request. Request for conference (2) Taxpayer may request a conference on application of § 7805(b). A taxpayer who requests the application of § 7805(b) in a separate letter ruling request has the right to a conference in the Associate office as explained in sections 10.02, 10.04, and 10.05 of this revenue procedure. If the request is made initially as part of a pending letter ruling request or is made before the conference of right is held on the substantive issues, the § 7805(b) issue will be discussed at the taxpayer’s one conference of right as explained in section 10.02 of this revenue procedure. If the request for the application of § 7805(b) relief is made as part of a pending letter ruling request after a conference has been held on the substantive issue and the Associate office determines that there is justification for having delayed the request, the taxpayer is entitled to one conference of right concerning the application of § 7805(b), with the conference limited to discussion of this issue only. SECTION 12. UNDER WHAT CIRCUMSTANCES DO DIRECTORS ISSUE DETERMINATION LETTERS? Directors issue determination letters only if the question presented is specifically answered by a statute, tax treaty, regulation, a conclusion stated in a revenue ruling, or an opinion or court decision that represents the position of the Service. Under no circumstances will a Director issue a determination letter unless it is clearly shown that the request concerns a return that has been filed or is required to be filed and over which the Director has, or will have, examination jurisdiction. A determination letter does not include assistance provided by the U.S. competent authority pursuant to the mutual agreement procedure in tax treaties as set forth in Rev. Proc. 2015-40, 2015-35 I.R.B. 236. Bulletin No. 2023–1 69 January 3, 2023 In income and gift tax matters . 01 In income and gift tax matters, Directors issue determination letters in response to taxpayers’ written requests on completed transactions that affect returns over which they have examination jurisdiction. A determination letter usually is not issued for a question concerning a return to be filed by the taxpayer if the same question is involved in a return already filed. Normally, Directors do not issue determination letters on the tax consequences of proposed transactions. A Director may issue a determination letter on the replacement of involuntarily converted property under § 1033, even if the replacement has not yet been made, if the taxpayer has filed an income tax return for the first taxable year in which any of the gain was realized from the converted property. In estate tax matters .02 In estate tax matters, Directors issue determination letters in response to written requests affecting the estate tax returns over which they have examination jurisdiction. They do not issue determination letters on matters concerning the application of the estate tax to the prospective estate of a living person. In generation-skipping transfer tax matters .03 In generation-skipping transfer tax matters, Directors issue determination letters in response to written requests affecting the generation-skipping transfer tax returns over which they have examination jurisdiction. They do not issue determination letters on matters concerning the application of the generation-skipping transfer tax before the distribution or termination takes place. In employment and excise tax matters .04 In employment and excise tax matters, Directors issue determination letters in response to taxpayers’ written requests on completed transactions over which they have examination jurisdiction. All determination letter requests regarding employment status (employer/employee relationship) made by taxpayers that are not Federal agencies and instrumentalities or their workers, must be submitted to the Internal Revenue Service as set forth in the current instructions for Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding. If the service recipient (the firm) requests the determination regarding employment status, the firm will receive any determination letter issued. A copy will also be sent to any workers identified in the request. If the worker makes the request and the firm has been contacted for information, both the worker and the firm will receive any issued determination letter. The determination letter will apply to any individuals engaged by the firm under substantially similar circumstances. See section 5.10 of this revenue procedure for requests regarding employment status made by Federal agencies and instrumentalities or their workers. In tax-exempt matters .05 In tax-exempt matters, Directors issue determination letters in response to applications for recognition of tax exemption under the jurisdiction of the Commissioner, TE/GE as set forth in Rev. Proc. 2023-5. Requests concerning income, estate, or gift tax returns .06 A request received by a Director on a question concerning an income, estate, or gift tax return already filed generally will be considered in connection with the examination of the return. If a response is made to the request before the return is examined, it will be considered a tentative finding in any later examination of that return. Review of determination letters .07 Determination letters issued under sections 12.01 through 12.04 of this revenue procedure are not reviewed by the Associate offices before they are issued. If a taxpayer believes that a January 3, 2023 70 Bulletin No. 2023–1 determination letter of this type is in error, the taxpayer may ask the Director to reconsider the matter or to request technical advice from an Associate office as explained in Rev. Proc. 2023-2, this Bulletin. The preceding sentence does not apply to SS-8 requests under section 12.04. If a taxpayer disagrees with a determination of employment status made in response to an SS-8 request, the taxpayer may request that the SS-8 Program reconsider the determination letter if the taxpayer has additional information concerning the relationship that was not part of the original submission or the taxpayer can identify facts that were part of the original submission that the taxpayer thinks were not fully considered. SECTION 13. WHAT EFFECT WILL A DETERMINATION LETTER HAVE? Has same effect as a letter ruling . 01 A determination letter issued by a Director has the same effect as a letter ruling issued to a taxpayer under section 11 of this revenue procedure. If a field office proposes to reach a conclusion contrary to that expressed in a determination letter, that office need not refer the matter to the Associate office as is required for a letter ruling found to be in error. The field office must, however, refer the matter to the Associate office through the appropriate Director if it desires to have the revocation or modification of the determination letter limited under § 7805(b), except if the determination letter has been issued by the Commissioner, Tax Exempt and Government Entities. See Rev. Proc. 2023-4 and Rev. Proc. 2023-5, this Bulletin. Taxpayer may request that retroactive effect of revocation or modification be limited .02 Under § 7805(b), the Service may prescribe the extent to which a revocation or modification of a determination letter will be applied without retroactive effect. For determination letters that are not issued by the Commissioner, Tax Exempt Government Entities, a Director does not have authority under § 7805(b) to limit the revocation or modification of the determination letter. Therefore, if the field office proposes to revoke or modify a determination letter, the taxpayer may request limitation of the retroactive effect of the revocation or modification by asking the Director that issued the determination letter to seek technical advice from the Associate office. See section 14.02 of Rev. Proc. 2023-2, this Bulletin. A taxpayer to whom a determination letter has been issued by the Commissioner, Tax Exempt and Government Entities, may request limiting the retroactive effect of any revocation or modification of the determination letter pursuant to the procedures set forth in section 23 of Rev. Proc. 2023-4, or section 12.04 of Rev. Proc. 2023-5, this Bulletin. Format of request (1) Request for relief under § 7805(b) must be made in required format. A taxpayer’s request to limit the retroactive effect of the revocation or modification of the determination letter must be in the form of, and meet the general requirements for, a technical advice request. See section 14.02 of Rev. Proc. 2023-2, this Bulletin. The request must also— (a) state that it is being made under § 7805(b); (b) state the relief sought; (c) explain the reasons and arguments in support of the relief sought (including a discussion of section 11.05 of this revenue procedure, the three items listed in section 11.06 of this revenue procedure, and any other factors as they relate to the taxpayer’s particular situation); and Bulletin No. 2023–1 71 January 3, 2023 Request for conference (d) include any documents bearing on the request. (2) Taxpayer may request a conference on application of § 7805(b). When technical advice is requested regarding the application of § 7805(b), the taxpayer has the right to a conference with the Associate office to the same extent as does any taxpayer who is the subject of a technical advice request. See section 14.04 of Rev. Proc. 2023-2, this Bulletin. SECTION 14. UNDER WHAT CIRCUMSTANCES ARE MATTERS REFERRED BETWEEN A DIRECTOR AND AN ASSOCIATE OFFICE? Requests for determination letters .01 If a Director receives a request for a determination letter but may not issue one under the provisions of this revenue procedure, the Director will forward the request to the appropriate Associate office for reply. The field office will notify the taxpayer that the matter has been referred. Directors will also refer to the appropriate Associate office any request for a determination letter that in their judgment should have the attention of the Associate office. The field office will notify the taxpayer that the matter has been referred. No-rule areas .02 If the request involves an issue on which the Service will not issue a letter ruling or determination letter, the request will not be forwarded to an Associate office. The Director will notify the taxpayer that the Service will not issue a letter ruling or a determination letter on the issue. See section 6 of this revenue procedure for a description of no-rule areas. Requests for letter rulings . 03 If an Associate office receives a request for a letter ruling that it may not act upon under section 6 of this revenue procedure, the Associate office may, in its discretion, forward the request to the field office that has examination jurisdiction over the taxpayer’s return. The taxpayer will be notified of this action. If the request is on an issue or in an area of the type discussed in section 6 of this revenue procedure and the Service decides not to issue a letter ruling or a determination letter, the Associate office will notify the taxpayer and will then forward the request to the appropriate field office for association with the related return. .04 If a request for a letter ruling is mistakenly sent to a Director, the Director will return it to the taxpayer so that the taxpayer can send it to an Associate office. Letter ruling request mistakenly sent to a Director SECTION 15. WHAT ARE THE USER FEE REQUIREMENTS FOR REQUESTS FOR LETTER RULINGS AND DETERMINATION LETTERS? Legislation authorizing user fees .01 Section 7528 was added to the Internal Revenue Code by section 202 of the Extension of the Temporary Assistance for Needy Families Block Grant Program, Pub. L. No. 108-89, amended by section 891(a) of the American Jobs Creation Act of 2004, Pub. L. 108-357, and was made permanent by section 8244 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Pub. L. No. 110-28. January 3, 2023 72 Bulletin No. 2023–1 Section 7528 provides that the Secretary of the Treasury or delegate (the “Secretary”) shall establish a program requiring the payment of user fees for requests to the Service for letter rulings, opinion letters, determination letters, and other similar requests. The fees charged under the program are to: (1) vary according to categories or subcategories established by the Secretary; (2) be determined after taking into account the average time for, and difficulty of, complying with requests in each category or subcategory; and (3) be payable in advance. The Secretary is to provide for exemptions and reduced fees under the program as the Secretary determines to be appropriate, but the average fee applicable to each category or subcategory must not be less than the amount specified in § 7528(b)(3). Requests to which a user fee applies .02 In general, user fees apply to all requests for— (1) letter rulings (including non-automatic Forms 3115, Application for Change in Accounting Method), determination letters, and advance pricing agreements; (2) closing agreements described in paragraph (A)(3)(d) of Appendix A of this revenue procedure and pre-filing agreements described in Rev. Proc. 2016-30, 2016-21 I.R.B. 981 (or its successor); (3) renewal of advance pricing agreements; (4) reconsideration of letter rulings or determination letters; and (5) supplemental letter rulings, determination letters, etc., to correct mistakes in original letter rulings, determination letters, etc. Requests to which a user fee applies must be accompanied by the appropriate fee as determined from the fee schedule provided in Appendix A of this revenue procedure. The fee may be refunded as provided in section 15.10 of this revenue procedure. Requests to which a user fee does not apply .03 User fees do not apply to— (1) elections made pursuant to § 301.9100-2, pertaining to automatic extensions of time (see section 5.03 of this revenue procedure); (2) late classification elections made pursuant to Rev. Proc. 2009-41, 2009-2 C.B. 439 (see section 5.03(6) of this revenue procedure); (3) late S corporation and related elections made pursuant to Rev. Proc. 2013-30, 2013-36 I.R.B. 173 (see section 5.02 of this revenue procedure); (4) requests for a change in accounting period or method of accounting permitted to be made by a published automatic change request revenue procedure (see section 9.01(1) of this revenue procedure); (5) requests for harassment campaign letter rulings under § 6104(d)(4); (6) request for Neighborhood Land Use Rule letter rulings under § 514(b)(3); Bulletin No. 2023–1 73 January 3, 2023 Exemptions from the user fee requirements (7) information letters; or (8) late elections under § 338 that qualify under the automatic provisions in sections 3, 4, and 5 of Rev. Proc. 2003-33, 2003-1 C.B. 803. .04 The user fee requirements do not apply to— (1) departments, agencies, or instrumentalities of the United States if they certify that they are seeking a letter ruling or determination letter on behalf of a program or activity funded by Federal appropriations. The fact that a user fee is not charged does not have any bearing on whether an applicant is treated as an agency or instrumentality of the United States for purposes of any provision of the Code; or (2) requests as to whether a worker is an employee for Federal employment taxes and income tax withholding purposes (Subtitle C of the Code) submitted on Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, or its equivalent. Fee schedule .05 The schedule of user fees is provided in Appendix A of this revenue procedure. For the user fee requirements applicable to— (1) requests for advance pricing agreements or renewals of advance pricing agreements, see section 3.05 of Rev. Proc. 2015-41, 2015-35 I.R.B. 263; or (2) requests for letter rulings, determination letters, etc., under the jurisdiction of the Commissioner, TE/GE (which no longer include changes in method of accounting), see Rev. Proc. 2023-4 and Rev. Proc. 2023-5, this Bulletin. Applicable user fee for a request involving multiple offices, fee categories, issues, transactions, or entities .06 (1) Requests involving several offices. If a request dealing with only one transaction involves more than one office within the Service (for example, one issue is under the jurisdiction of the Associate Chief Counsel (Passthroughs and Special Industries) and another issue is under the jurisdiction of the Commissioner, TE/GE), only one fee applies, namely the highest fee that otherwise would apply to each of the offices involved. See Rev. Proc. 2023-4 and Rev. Proc. 2023- 5, this Bulletin, for the user fees applicable to issues under the jurisdiction of the Commissioner, TE/GE. However, if an additional request is submitted after the original ruling is issued, regardless of whether it relates to the same transaction or facts at issue in the earlier request, a new user fee applies. (2) Requests involving several fee categories. If a request dealing with only one transaction involves more than one fee category, only one fee applies: the highest fee that otherwise would apply to each of the categories involved. (3) Requests involving several issues. If a request dealing with only one transaction involves several issues, a request for a change in method of accounting dealing with only one item or submethod of accounting involves several issues, or a request for a change in accounting period dealing with only one item involves several issues, the request is treated as one request. Therefore, only one fee applies, i.e., the fee that applies to the particular category or subcategory involved. The addition of a new issue relating to the same transaction, item, or submethod will not result January 3, 2023 74 Bulletin No. 2023–1 in an additional fee unless the issue places the transaction, item, or submethod in a higher fee category. So long as the issues all relate to a single transaction, a request that the Service address one or more of the issues in a separate ruling will not result in an additional fee. (4) Requests involving several unrelated transactions. If a request involves several unrelated transactions, a request for a change in method of accounting involves several unrelated items or submethods of accounting, or a request for a change in accounting period involves several unrelated items, each transaction or item is treated as a separate request. As a result, a separate fee will apply for each unrelated transaction, item, or submethod. An additional fee will apply if the request is changed by the addition of an unrelated transaction, item, or submethod not contained in the initial request. An example of a request involving unrelated transactions is a request involving relief under § 301.9100-3 and the underlying issue. (5) Requests involving several entities. Each entity involved in a transaction (for example, a reorganization) that desires a separate letter ruling in its own name must pay a separate fee regardless of whether the transaction or transactions may be viewed as related. But see section 15.07 of this revenue procedure (providing a reduced user fee for substantially identical letter rulings or substantially identical changes in method of accounting). (6) Requests made by married taxpayers who file jointly. A married couple filing a joint return may jointly request a single letter ruling and pay a single user fee if the issues arise from a joint activity or if the spouses would otherwise qualify for substantially identical letter rulings. See section 15.07 of this revenue procedure. If a spouse desires a ruling to be individually issued to him or her, a separate fee must be paid for each individual request. Applicable user fee for requests for substantially identical letter rulings or closing agreements, or identical changes in method of accounting .07 (1) In general. The user fees provided in paragraph (A)(5) of Appendix A of this revenue procedure apply to the situations described in sections 15.07(2) and 15.07(4) of this revenue procedure. To assist in the processing of these user fee requests, all letter ruling requests submitted under this section 15.07 should— (a) except for non-automatic Forms 3115, include the following typed or printed language at the top of the letter ruling request: “REQUEST FOR USER FEE UNDER SECTION 15.07 OF REV. PROC. 2023-1”; (b) list on the first page of the submission all taxpayers and entities, and separate and distinct trades or businesses, including QSubs or single-member LLCs, requesting a letter ruling (including the taxpayer identification number and the amount of user fee submitted for each taxpayer, entity, or separate and distinct trade or business); and (c) make one payment to cover all user fees. If the Service determines that the letter ruling requests do not qualify for the user fee provided in paragraph (A)(5) of Appendix A of this revenue procedure, the Service will request the proper fee. See section 15.09 of this revenue procedure. (2) Substantially identical letter rulings and closing agreements. The user fee provided in paragraph (A)(5)(a) of Appendix A of this revenue procedure applies to a taxpayer or taxpayers requesting substantially identical letter rulings (including accounting period, method of accounting, and earnings and profits requests other than those submitted on Form 1128, Application to Adopt, Bulletin No. 2023–1 75 January 3, 2023 Change, or Retain a Tax Year, Form 2553, Election by a Small Business Corporation, Form 3115, Application for Change in Accounting Method, and Form 5452, Corporate Report of Nondividend Distributions) in the following situations: The taxpayers to whom the letter rulings will be issued are multiple entities with a common member, sponsor, or parent, or multiple members of a common entity or consolidated group; or The taxpayers to whom the letter rulings will be issued are parties engaged together in the same transaction affecting all requesting taxpayers. To qualify for this reduced user fee, all information and underlying documents must be substantially identical and all letter ruling requests must be submitted at the same time in a single submission. In addition, the taxpayer(s) must state that the letter ruling requests and all information and underlying documents are substantially identical, and must specifically identify the extent to which the letter ruling requests, information, and underlying documents are not identical. If a taxpayer or taxpayers requesting reduced user fees pursuant to this section 15.07(2) also request a pre-submission conference pursuant to section 10.07, the taxpayer(s) should notify the Associate office at or before the pre-submission conference that the taxpayer(s) intend to request reduced user fees pursuant to this paragraph. At the pre-submission conference, the taxpayer(s) should discuss with the Associate office how the letter ruling requests will satisfy the requirements of this paragraph. The reduced fee for substantially identical letter rulings is applicable to taxpayers requesting closing agreements as described in section 2.02 of this revenue procedure, assuming they meet the requirements described above for letter rulings. (3) Substantially identical plans under § 25(c)(2)(B). The user fee provided in paragraph (A)(5)(c) of Appendix A of this revenue procedure shall apply to a taxpayer who submits substantially identical plans for administering the 95-percent requirement of § 143(d)(1) following the submission and approval of an initial plan for administering the requirement. The request for subsequent approvals of substantially identical plans must (1) state that a prior plan was submitted and approved and include a copy of the prior plan and approval; (2) state that the subsequent plan is substantially identical to the approved plan; and (3) describe any differences between the approved plan and the subsequent plan. (4) Identical changes in method of accounting and related § 301.9100 letter rulings. A common sponsor of multiple entities, common parent of a consolidated group, or other taxpayer, is eligible for the user fees provided in paragraphs (A)(5)(b) and (d) of Appendix A of this revenue procedure when requesting an identical change in method of accounting on a single Form 3115, Application for Change in Accounting Method, or an extension of time to file Form 3115 under § 301.9100-3 for the identical change in method of accounting, for two or more of the following in any combination— (a) entities of that common sponsor; (b) members of that consolidated group; January 3, 2023 76 Bulletin No. 2023–1 (c) separate and distinct trades or businesses (for purposes of § 1.446-1(d)) of that taxpayer or member(s) of that consolidated group. Separate and distinct trades or businesses include QSubs and single-member LLCs; (d) partnerships that are wholly-owned within that consolidated group; or (e) controlled foreign corporations (CFCs) and noncontrolled 10-percent owned foreign corporations that do not engage in a trade or business within the United States where (i) all controlling U.S. shareholders of the CFCs and all majority domestic corporate shareholders of the noncontrolled 10-percent owned foreign corporations, as applicable, are members of that consolidated group; or (ii) the taxpayer is the sole controlling U.S. shareholder of the CFCs or the sole domestic corporate shareholder of that noncontrolled 10-percent owned foreign corporation. To qualify as an identical change in method of accounting, the multiple entities with a common sponsor, the multiple entities wholly owned or controlled by a consolidated group or other taxpayer, or separate and distinct trades or businesses (that is, the applicants) must request to change from an identical present method of accounting to an identical proposed method of accounting. All aspects of the requested change in method of accounting must be identical, including the year of change, the present and proposed methods, the underlying facts and the authority for the request, except for the § 481(a) adjustments. If the Associate office determines that the requested changes in method of accounting are not identical, additional user fees will be required before any letter ruling is issued. The taxpayer, common sponsor, or common parent must, for each applicant for which the change in method of accounting is being requested, attach to the Form 3115 a schedule providing the name, employer identification number (where applicable), and § 481(a) adjustment. If the request is on behalf of eligible CFCs or noncontrolled 10-percent owned foreign corporations, the taxpayer or common parent must attach a statement that “[a]ll controlling U.S. shareholders (as defined in § 1.964-1(c)(5)(i)) of all the CFCs to which the request relates are members of the common parent’s consolidated group,” that “[a]ll majority domestic corporate shareholders (as defined in § 1.964-1(c)(5)(ii)) of all the noncontrolled 10-percent owned foreign corporations to which the request relates are members of the common parent’s consolidated group,” that “[t] he taxpayer filing the request is the sole controlling U.S. shareholder (as defined in § 1.964-1(c) (5)) of the CFCs to which the request relates,” or that “[t]he taxpayer filing the request is the sole domestic corporate shareholder (as defined in § 1.964-1(c)(5)) of the noncontrolled 10-percent owned foreign corporations to which the request relates,” as applicable. If the request is on behalf of eligible partnerships, the common parent must attach a statement that “[a]ll partnerships to which the request relates are wholly-owned by members of the common parent’s consolidated group.” In the case of a § 301.9100 request for an extension of time to file a Form 3115 requesting an identical change in method of accounting for multiple entities with a common sponsor, multiple members of a consolidated group and/or multiple separate and distinct trades or businesses of a taxpayer or member(s) of the consolidated group, or multiple eligible CFCs or noncontrolled 10-percent owned foreign corporations (applicants), the taxpayer, common sponsor, or common parent must submit the information required in the preceding paragraph in addition to the information required by section 5.03 of this revenue procedure. Method of payment .08 Each request to the Service that is subject to a user fee under this revenue procedure must be accompanied by full payment. The user fees for all requests must be paid through www. pay.gov, except for requests for a determination letter from a Director (see paragraph (A)(1) of Appendix A), which are payable by check and mailed along with the request for determination letter. Additionally, foreign entities that wish to submit payment from a foreign bank may submit Bulletin No. 2023–1 77 January 3, 2023 Effect of nonpayment or payment of incorrect amount their payment by check. To locate the appropriate form on www.pay.gov, search for “Counsel Rulings User Fees” or navigate directly to https://www.pay.gov/public/form/start/106105509 (as of November 9, 2022). .09 If a request is not matched with full payment, the office within the Service that is responsible for issuing the letter ruling, determination letter, advance pricing agreement, closing agreement, or reconsideration of a letter ruling or determination letter generally will exercise discretion in deciding whether to immediately return the request. If a request is not immediately returned, the taxpayer will be contacted and given a reasonable amount of time to submit the proper fee. If the proper fee is not received within a reasonable amount of time, the request will then be returned. The Service will usually defer substantive consideration of a request until proper payment has been received. The return of a request to the taxpayer may adversely affect substantive rights if the request is not perfected and resubmitted to the Service within 30 calendar days of the date of the cover letter returning the request. If a payment is made for more than the correct amount, the request will be accepted and the amount of the excess payment will be refunded to the taxpayer. If a ruling is issued and because of the ruling the taxpayer’s gross income is reduced such that the taxpayer would have qualified for a reduced user fee in Appendix A, paragraph (A)(4), the amount of user fee paid in excess of the reduced fee will be refunded to the taxpayer. Refunds of user fee .10 In general, user fees will not be refunded. User fees, however, will be refunded in the following situations. (1) A user fee paid with a request to correct a mistake or omission in a prior issued letter ruling, determination letter, etc., will be refunded if the Service determines that the Service was responsible for the mistake or omission. (2) A user fee paid with a request for relief under § 7805(b) in connection with the revocation in whole or in part, of a previously issued letter ruling, determination letter, etc., will be refunded if the relief is granted. (The user fee paid for the letter ruling, determination letter, etc., that was revoked is never refunded.) (3) A user fee paid with a request for reconsideration of the Service’s decision not to rule on an issue will be refunded if the Service agrees to rule on the issue and the user fee paid with the initial request was not refunded. (4) If the requested ruling, determination letter, etc., is not issued for any reason, and the Service determines that a refund is appropriate after taking into account all the facts and circumstances, including the amount of the Service’s time and resources spent on the request, the user fee will be refunded. Request for reconsideration of user fee .11 A taxpayer who believes the user fee charged by the Service for its request for a letter ruling, determination letter, advance pricing agreement, or closing agreement is either inapplicable or incorrect and wishes to receive a refund of all or part of the amount paid (see section 15.10 of this revenue procedure) may request reconsideration and, if desired, the opportunity for an oral discussion by sending a letter to the Service at the appropriate address given in section 7.04 in this revenue procedure. Both the incoming envelope and the letter requesting such reconsideration should be prominently marked “USER FEE RECONSIDERATION REQUEST.” No user fee is required for these requests. The request should be marked for the attention of: January 3, 2023 78 Bulletin No. 2023–1 If the matter involves primarily: Mark for the attention of: Associate Chief Counsel (Corporate) letter ruling requests Associate Chief Counsel (Corporate) Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) letter ruling requests Deputy Associate Chief Counsel ( ) (Complete parenthetical by using the applicable designation “Employee Benefits” or “Exempt Organizations and Employment Taxes”) Associate Chief Counsel (Financial Institutions and Products) letter ruling requests Associate Chief Counsel (Financial Institutions and Products) Associate Chief Counsel (Income Tax and Accounting) letter ruling requests Associate Chief Counsel (Income Tax and Accounting) Associate Chief Counsel (International) letter ruling requests Associate Chief Counsel (International) Associate Chief Counsel (Passthroughs and Special Industries) letter ruling requests Associate Chief Counsel (Passthroughs and Special Industries) Associate Chief Counsel (Procedure and Administration) letter ruling requests Associate Chief Counsel (Procedure and Administration) Determination letter requests submitted pursuant to this revenue procedure by taxpayers under the jurisdiction of LB&I Assistant Deputy Commissioner, Compliance Integration Determination letter requests submitted pursuant to this revenue procedure by taxpayers under the jurisdiction of SB/SE or W&I Director, SB/SE Exam, Specialty Policy Bulletin No. 2023–1 79 January 3, 2023 Determination letter requests submitted pursuant to this revenue procedure by taxpayers under the jurisdiction of TE/GE Director, Employee Plans Examinations Director, Exempt Organizations Examinations Director, Government Entities (Add name of field office handling the request) SECTION 16. WHAT SIGNIFICANT CHANGES HAVE BEEN MADE TO REV. PROC. 2022-1? Section 5.01 has been amended to clarify that an Associate office will generally issue a letter ruling on a completed transaction as long as the letter ruling request is submitted before a return containing a tax position on the completed transaction is filed, even if a return has been filed for the year in which the transaction took place. Question 5 on the Letter Ruling Checklist in Appendix C has also been amended to reflect this clarification. Section 9.05(1) has been amended to reflect that a taxpayer submitting a non-automatic Form 3115 on paper may not submit payment with the paper submission. Rather, the taxpayer must first submit the appropriate user fee payment through www.pay.gov and include a copy of the receipt for this payment with the request. Section 9.22(2) has been amended to reflect that the method of accounting change procedures described in Treas. Reg. 1.448-1 (to an overall accrual method for the taxpayer’s first taxable year it is subject to § 448) are no longer available because that regulation only applies to tax years beginning before January 1, 2018. Section 12.05 was added to clarify that in tax-exempt matters, Directors issue determination letters in response to applications for recognition of tax exemption under the jurisdiction of the Commissioner, TE/GE as set forth in Rev. Proc. 2023-5. Section 15.08 has been amended to reflect that foreign entities that wish to submit payment of a user fee from a foreign bank may submit their payment by check instead of by using www.pay. gov. Editorial and clarifying changes have been made throughout. SECTION 17. WHAT IS THE EFFECT OF THIS REVENUE PROCEDURE ON OTHER DOCUMENTS? R ev. Proc. 2022-1, 2022-1 I.R.B. 1, is superseded. SECTION 18. WHAT IS THE EFFECTIVE DATE OF THIS REVENUE PROCEDURE? This revenue procedure is effective for all requests received on or after January 3, 2023. Rev. Proc. 2022-1 governs requests received prior to January 3, 2023. SECTION 19. PAPERWORK REDUCTION ACT The collections of information contained in this revenue procedure have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. § 3507) under control number 1545-1522. January 3, 2023 80 Bulletin No. 2023–1 An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number. The collections of information in this revenue procedure are in sections 5.06, 6.03, 7.01, 7.02, 7.03, 7.04, 7.05, 7.07, 7.08, 8.02. 8.05, 8.07, 10.01, 10.06, 10.07, 11.11, 13.02, 15.02, 15.07, 15.08, 15.09, 15.11, paragraph (B)(1) of Appendix A, Appendix C, Appendix D, Appendix E, and Appendix F (subject matter—rate orders; regulatory agency; normalization). This information is required to evaluate and process the request for a letter ruling or determination letter. In addition, this information will be used to help the Service delete certain information from the text of the letter ruling or determination letter before it is made available for public inspection as required by § 6110. The collections of information are required to obtain a letter ruling or determination letter. The likely respondents are businesses or other for-profit institutions and tax-exempt organizations. The estimated total annual reporting and/or recordkeeping burden is 316,020 hours. The estimated annual burden per respondent/recordkeeper varies from 1 to 200 hours, depending on individual circumstances, with an estimated average burden of 80 hours. The estimated number of respondents and/or recordkeepers is 3,956. The estimated annual frequency of responses is on occasion. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by § 6103. DRAFTING INFORMATION The principal author of this revenue procedure is Taylor H. Huse of the Office of Associate Chief Counsel (Procedure and Administration). For further information regarding this revenue procedure for matters under the jurisdiction of— (1) the Associate Chief Counsel (Corporate), contact T. Ian Russell or Jean R. Broderick at (202) 317-3181 (not a toll-free call), (2) the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), contact Melissa L. Duce at (202) 317-6000 (not a toll-free call), (3) the Associate Chief Counsel (Financial Institutions and Products), contact K. Scott Brown at (202) 317-6945 (not a toll-free call), (4) the Associate Chief Counsel (Income Tax and Accounting), contact R. Matthew Kelley at (202) 317-7002 (not a toll-free call), (5) the Associate Chief Counsel (International), contact Nancy Galib at (202) 317-3800 (not a toll-free call), (6) the Associate Chief Counsel (Passthroughs and Special Industries), contact Jason Deirmenjian at (202) 317-4137 (not a toll-free call), or Bulletin No. 2023–1 81 January 3, 2023 (7) the Associate Chief Counsel (Procedure and Administration), contact Stephanie Chernoff at (202) 317-3400 (not a toll-free call). For further information regarding user fees, contact the Technical Services Support Branch at (202) 317-6828 (not a toll-free call). For further information regarding determination letters: LB&I taxpayers should contact Joanne Jewell in the Office of the Assistant Deputy Commissioner, Compliance Integration, LB&I, at (802) 859-1015 (not a toll-free call); SB/SE taxpayers, for questions regarding determination letters involving estate and gift taxes, employment taxes, or excise taxes, should contact Jesse Walker in SB/SE Specialty Exam Policy at (240) 613-6460 (not a toll-free call); SB/SE taxpayers, for questions regarding determination letters involving income taxes, should submit either their question or a request to speak to someone in Field Exam Technical Services by electronic facsimile to (877) 477-9193. If the request involves a pending request for a determination letter, please provide the taxpayer’s taxpayer identification number, phone number, and address as reflected in the request for a determination letter; W&I taxpayers should submit either their question or a request to speak to someone in the Wage & Investment Division by electronic facsimile to (855) 863-8342. If the request involves a pending request for a determination letter, please provide the taxpayer’s taxpayer identification number, phone number, and address as reflected in the request for a determination letter; and TE/GE taxpayers should also refer to Revenue Procedures 2023-4 and 2023-5, this Bulletin. January 3, 2023 82 Bulletin No. 2023–1 INDEX References are to sections in Rev. Proc. 2023-1 Additional Information – penalties of perjury statement required ...........................................................................................8.05(4) – proposed deletions under § 6110 ...................................................................................................7.01(12) – information requested during initial and subsequent contacts ............................................................8.05 failure to submit...............................................................................................................................8.05(3) subsequent information after conference ..........................................................................................10.06 – where and how to send .........................................................................................8.05(5), (6); 9.08(5), (6) Changes in Method of Accounting or Accounting Period – applicable sections of Rev. Proc. 2023-1 for changes in method of accounting .................................9.23 – applicable sections of Rev. Proc. 2023-1 for accounting period .............................................Appendix F – automatic change request procedures ............................................................9.01, 9.06, 9.22, Appendix F – identical changes in method of accounting .........................................................9.15, 15.07, Appendix A – user fees ...................................................................................................................................Appendix A Checklist Required ........................................................................................................7.01(18), Appendix C Conferences – offered ...............................................................................................................................................10.02 after conference of right ....................................................................................................................10.05 application of § 6110 ................................................................................................................7.01(12)(e) – requesting a conference ...................................................................................................................7.02(6) – scheduling ..............................................................................................................................10.01, 10.02 application of § 7805(b) ................................................................................................11.11(2), 13.02(2) pre-submission conferences ..............................................................................................................10.07 telephone conferences .......................................................................................................................10.08 Definitions – Associate office ...............................................................................................................................1.01(2) – closing agreement................................................................................................................................2.02 – determination letter .............................................................................................................................2.03 – Director ...........................................................................................................................................1.01(3) – field office ........................................................................................................................................1.01(4) – taxpayer ...........................................................................................................................................1.01(5) – information letter .................................................................................................................................2.04 – letter ruling ..........................................................................................................................................2.01 – Service .............................................................................................................................................1.01(1) Determinations Under § 999(d) ...............................................................................................................5.04 Discussions Not Binding on Service – at pre-submission conference ........................................................................................................10.07(4) – informal opinion expressed .................................................................................................................8.04 – oral advice to taxpayers ...................................................................................................................2.05(2) Electronic Facsimile – to receive letter ruling .......................................................................................................7.02(5), 9.04(3) – to receive request for additional information ....................................................................7.02(5), 9.04(3) – to submit additional information .......................................................................................8.05(5), 9.08(5) – to submit letter ruling request .........................................................................................................7.04(2) – to submit non-automatic Forms 3115 ..............................................................................................9.05(2) Employee Plans and Exempt Organizations – jurisdiction of Commissioner, Tax Exempt and Government Entities Division .................................4.02 – user fee ................................................................................................................................................4.02 Encrypted Email Attachment – MOU to receive encrypted email ............................................................................................Appendix G – MOU to send encrypted email ................................................................................................Appendix H – to receive ruling.................................................................................................................7.02(5), 9.04(3) – to receive request for additional information ....................................................................7.02(5), 9.04(3) – to submit additional information .......................................................................................8.05(5), 9.08(5) – to submit letter ruling request .........................................................................................................7.04(3) – to submit non-automatic Forms 3115 ..............................................................................................9.05(3) Bulletin No. 2023–1 83 January 3, 2023 Estate Tax Matters – issuance of determination letters ............................................................................................12.02, 12.06 – issuance of letter rulings......................................................................................................................5.06 under § 2032A(c).................................................................................................................................5.07 Expedited Handling of Letter Ruling and Determination Letter Requests ....................................7.02(4) Extension of Time – to schedule conference ......................................................................................................................10.01 – to submit additional information .....................................................................................................8.05(2) Fax Transmission – to receive ruling.................................................................................................................7.02(5), 9.04(3) – to receive request for additional information ....................................................................7.02(5), 9.04(3) – to submit additional information .......................................................................................8.05(5), 9.08(5) – to submit automatic Forms 3115 .....................................................................................................9.06(2) Hand Delivery of Letter Ruling Requests ...........................................................................................7.04(1) No-Rule Areas .................................................................................................................................................6 Oral Advice to Taxpayers .........................................................................................................................2.05 Penalties of Perjury Statement – form for letter ruling request ....................................................................................................7.01(16)(a) – form for submission of additional information ...............................................................................8.05(4) – required with draft letter ruling ...........................................................................................................8.07 – signature requirements .............................................................................................................7.01(16)(b) Pending Letter Ruling Requests – when to attach a copy to return .......................................................................................................7.05(2) estate tax matters .................................................................................................................................5.06 – when to notify Associate office ...........................................................................................................7.05 estate tax matters .................................................................................................................................5.06 Power of Attorney – Form 2848 .......................................................................................................................7.01(15), 7.02(2) original sent to the taxpayer ............................................................................................................7.02(2) copy sent to a representative ...........................................................................................................7.02(2) copies sent to multiple representatives ............................................................................................7.02(2) no copy sent to representatives ........................................................................................................7.02(2) – signature requirements ..................................................................................................................7.01(15) Public Disclosure of Information Letters................................................................................................2.04 Public Inspection Under § 6110 .........................................................................................................7.01(12) – signature requirements .............................................................................................................7.01(12)(c) Representatives – compliance with Treasury Department Circular No. 230 .............................................................7.01(14) – power of attorney required ............................................................................................................7.01(15) – requirements ..................................................................................................................................7.01(14) authorized representatives ........................................................................................................7.01(14)(a) authorized based on relationship ..............................................................................................7.01(14)(b) return preparer ..........................................................................................................................7.01(14)(c) foreign representative ...............................................................................................................7.01(14)(d) Retroactive Revocation or Modification – of determination letter ............................................................................................................................13 request to limit retroactive effect .......................................................................................................13.02 – of letter ruling ........................................................................................................................11.05 - 11.10 request to limit retroactive effect ........................................................................................................11.11 Revenue Rulings – effect on a letter ruling ......................................................................................................................11.04 – request to limit retroactive effect ........................................................................................................11.11 Sample of a Letter Ruling Request ..............................................................................7.01(17), Appendix B Section 301.9100 Relief .............................................................................................................................5.03 Section 367 Rulings ...................................................................................................................................5.05 Status of Letter Ruling and Determination Letter Requests ................................................................7.07 Substantially Identical Letter Rulings .........................................................................15.07(2), Appendix A January 3, 2023 84 Bulletin No. 2023–1 Tax Exempt and Government Entities (TE/GE) – jurisdiction of Commissioner, Tax Exempt and Government Entities Division .................................4.02 – user fees ...............................................................................................................................................4.02 User Fees – schedule of user fees ...............................................................................................................Appendix A – user fee requirements .............................................................................................................................15 to reopen case ..................................................................................................................................8.05(3) Where to Send – determination letter request .................................................................................................................7.04 – letter ruling request ....................................................................................................................7.04, 9.05 additional information ..........................................................................................8.05(5), (6); 9.08(5), (6) hand delivery .....................................................................................................................7.04(1), 8.05(1) Withdrawal of Letter Ruling and Determination Letter Requests ......................................................7.08 Bulletin No. 2023–1 85 January 3, 2023 APPENDIX A SCHEDULE OF USER FEES NOTE: Payment must be in U.S. dollars and made through www.pay.gov for all requests other than requests for a determination letter from a Director (see paragraph (A)(1) of this appendix), which are payable by check and mailed along with the request for determi- nation letter. See sections 15.08 and 15.09 of this revenue procedure. (A) FEE SCHEDULE CATEGORYUSER FEE FOR REQUESTS RECEIVED PRIOR TO FEBRUARY 3, 2023 USER FEE FOR REQUESTS RECEIVED AFTER FEBRUARY 2, 2023 (1) User fee for a request for a determination letter from a Director. The user fee for each determination letter request governed by Rev. Proc. 2023- 1, this revenue procedure. $275$275 (2) User fee for a request for an advance pricing agreement or a renew- al of an advance pricing agreement. See section 3.05 of Rev. Proc. 2015-41, 2015-35 I.R.B. 263. See section 3.05 of Rev. Proc. 2015-41, 2015-35 I.R.B. 263. (3) User fee for a request for a letter ruling or closing agreement. Except for the user fees for advance pricing agreements and renewals, the reduced fees provided in paragraph (A)(4) of this appendix, the user fees provid- ed in paragraph (A)(5) of this appendix, and the exemptions provided in section 15.04 of this revenue procedure, the user fee for each request for a letter ruling or closing agreement under the jurisdiction of the Associate Chief Counsel (Corporate), the Associate Chief Counsel (Employee Ben- efits, Exempt Organizations, and Employment Taxes), the Associate Chief Counsel (Financial Institutions and Products), the Associate Chief Counsel (Income Tax and Accounting), the Associate Chief Counsel (International), the Associate Chief Counsel (Passthroughs and Special Industries), or the Associate Chief Counsel (Procedure and Administration) is as follows: (a) Accounting periods (i) Form 1128, Application to Adopt, Change, or Retain a Tax Year, (except as provided in paragraph (A)(4)(a) of this appendix) (ii) Requests made on Part II of Form 2553, Election by a Small Business Corporation, to use a fiscal year based on a busi- ness purpose (except as provided in paragraph (A)(4)(a) of this appendix) (iii) Letter ruling requests for extensions of time to file Form 1128, Application to Adopt, Change, or Retain a Tax Year, Form 8716, Election To Have a Tax Year Other Than a Re- quired Tax Year, or Part II of Form 2553 under § 301.9100-3 (except as provided in paragraph (A)(4)(a) of this appendix) $5,000 $5,000 $5,300 $5,000 $5,000 $5,300 (b) Changes in Methods of Accounting (i) Non-automatic Form 3115, Application for Change in Ac- counting Method (except as provided in paragraph (A)(4)(a) or (b), or (5)(b) of this appendix) (ii) Letter ruling requests for extensions of time to file Form 3115, Application for Change in Accounting Method, under § 301.9100-3 (except as provided in paragraph (A)(4)(a) or (b), or (5)(d) of this appendix) $11,500 $12,500 $11,500 $12,500 No user fee is required if the change in accounting period or method of ac- counting is permitted to be made pursuant to a published automatic change request procedure. See section 9.22 and Appendix F of this revenue proce- dure, for the list of automatic change request procedures published and/or in effect as of December 31, 2022. January 3, 2023 86 Bulletin No. 2023–1 (c) (i) Letter ruling requests for relief under § 301.9100-3 or § 1362(b)(5) (except as provided in paragraph (A)(4)(a) or (b), or (5)(a) of this appendix) (ii) All other letter ruling requests (including accounting period and method of accounting requests other than those properly submitted on Form 1128, Application to Adopt, Change, or Retain a Tax Year, Part II of Form 2553, Election by a Small Business Corporation, or Form 3115, Application for Change in Accounting Method) (except as provided in para- graph (A)(4)(a) or (b), or (5)(a) of this appendix) $12,600 $38,000 $12,600 $38,000 (d) Requests for closing agreements on a proposed transaction or on a completed transaction before a return for the transaction has been filed in which a letter ruling on that transaction is not requested or issued (except as provided in paragraph (A)(4)(a) or (b), and in paragraph (A)(5), of this appendix) $38,000$38,000 (e) A request for a Foreign Insurance Excise Tax Waiver Agreement$8,000$8,000 NOTE: A taxpayer who receives relief under § 301.9100-3 (for example, an extension of time to file Form 3115, Application for Change in Accounting Method) will be charged a separate user fee for the letter ruling request on the underlying issue (for example, the accounting period or method of accounting application). (4) Reduced user fee for a request for a letter ruling, method or period change, or closing agreement. A reduced user fee for a request involving a personal, exempt organization, governmental entity, or business tax issue is provided in the following situations if the person provides the certification described in paragraph (B)(1) of this appendix: (a) Request involves a tax issue from a person with gross income (as determined under paragraphs (B)(2), (3), (4), and (5) of this appendix) of less than $250,000 $3,000$3,000 (b) Request involves a tax issue from a person with gross income (as determined under paragraphs (B)(2), (3), (4), and (5) of this appendix) of less than $1 million and $250,000 or more $8,500$8,500 (5) User fee for substantially identical letter ruling requests or closing agreements, identical changes in method of accounting, or plans from issuing authorities under § 25(c)(2)(B). If the requirements of section 15.07 of this revenue procedure are satisfied, the user fee for the following situations is as follows: (a) Substantially identical letter rulings and closing agreements re- quested (other than changes in methods of accounting requested on Form 3115) Requests for substantially identical letter rulings or closing agree- ments for multiple entities with a common member, sponsor, or parent, or for multiple members of a common entity or consolidat- ed group, or for parties engaged together in the same transaction affecting all requesting taxpayers, for each additional letter ruling request after the general fee or reduced fee, as applicable, has been paid for the first letter ruling request. These requests may include, but are not limited to, requests for substantially identical letter rulings for two or more identical trusts, multiple beneficiaries of a trust, a trust divided into identical subtrusts, spouses making split gifts, or series funds within a single trust or series organization. $3,800$3,800 Bulletin No. 2023–1 87 January 3, 2023 NOTE: Each entity or member that is entitled to the user fee under para- graph (A)(5)(a) of this appendix that receives relief under § 301.9100-3 (for example, an extension of time to file an election) will be charged a separate user fee for the letter ruling request on the underlying issue. NOTE: The fee charged for the first letter ruling is the highest fee applica- ble to any of the entities. NOTE: Where the requests for the letter rulings are submitted by a private foundation described in § 509 and one or more disqualified persons de- scribed in § 4946, the fee charged for the first letter ruling to a disqualified person is the highest fee applicable to any of the taxpayers. (b) Identical change in method of accounting requested on a single Form 3115, Application for Change in Accounting Method, as provided in section 15.07(4) (fee for each additional applicant seeking the identical change in method of accounting on the same Form 3115 after the general fee or reduced fee, as applicable, has been paid for the first applicant) $245$245 (c) Substantially identical plans under § 25(c)(2)(B) (situations where an issuing authority under § 25 submits substantially identical plans for administering the 95-percent requirement of § 143(d)(1) following the submission of an initial plan that was approved) NOTE: The fee charged for the first letter ruling is the highest fee applica- ble to any of the entities. $1,500$1,500 (d) Extension of time requested to file Form 3115, Application for Change in Accounting Method, for an identical change in method of accounting as provided in section 15.07(4) (fee for each addi- tional or each additional applicant seeking the identical extension of time under § 301.9100-3 to file a single Form 3115 for the identical change in method of accounting after the general fee or reduced fee, as applicable, has been paid for the first applicant) NOTE: When an extension of time to file Form 3115, Application for Change in Accounting Method, is granted under § 301.9100-3 for multiple applicants, a separate user fee will be charged for the change in method of accounting application, Form 3115. $245$245 (6) User fee for information letter requests. (7) User fee for pre-filing agreements. (8) Tax treaty limitation of benefits. See Rev. Proc. 2015-40, 2015-35 I.R.B. 236 for procedures for requesting competent authority assistance un- der tax treaties. (9) Statement of Value. See Rev. Proc. 96-15 for procedures for requesting a statement of value. (A) User fee for a case with 1-3 items (B) Cost per each additional item beyond 3 $0 $181,500 $37,000 $7,500 $400 $0 $181,500 $37,000 $7,500 $400 January 3, 2023 88 Bulletin No. 2023–1 (B) PROCEDURAL MATTERS (1) Required certification. A person seeking a reduced user fee under paragraph (A)(4) of this Appendix must provide the follow- ing certification in order to obtain the reduced user fee: (a) If a person is seeking a reduced user fee under paragraph (A)(4)(a) of this appendix, the person must certify in the request that his, her, or its gross income, as defined under paragraphs (B)(2), (3), (4), and (5) of this appendix, as applicable, is less than $250,000 as reported on their last Federal income tax return (as amended) filed for a full (12 months) taxable year ending before the date the request is filed. (b) If a person is seeking a reduced user fee under paragraph (A)(4)(b) of this appendix, the person must certify in the request that his, her, or its gross income, as defined under paragraphs (B)(2), (3), (4), and (5) of this appendix, as applicable, is less than $1 million and more than $250,000 as reported on their last Federal income tax return (as amended) filed for a full (12 months) taxable year ending before the date the request is filed. The certification must be attached as part of the ruling request. (2) Gross income for a request involving a personal tax issue. For purposes of the reduced user fees provided in paragraphs (A) (4)(a) and (b) of this Appendix for— (a) U.S. citizens and resident alien individuals, domestic trusts, and domestic estates, “gross income” is equal to “total in- come” as reported on their last Federal income tax return (as amended) filed for a full (12-month) taxable year ending before the date the request is filed, plus any interest income not subject to tax under § 103 (interest on state and local bonds) for that period. “Total income” is a line item on Federal tax returns. For example, if the 2020 Form 1040, U.S. Individual Income Tax Return, is the most recent 12-month taxable year return filed by a U.S. citizen, “total income” on the Form 1040 is the amount entered on line 9. In the case of a request for a letter ruling or closing agreement from a domestic estate or trust that, at the time the request is filed, has not filed a Federal income tax return for a full taxable year, the reduced user fee in paragraph (A)(4)(a) of this Appendix will apply if the decedent’s or (in the case of an individual grantor) the grantor’s total income as reported on the last Federal income tax return filed for a full taxable year ending before the date of death or the date of the transfer, taking into account any additions required to be made to total income described in paragraph (B)(2)(a), is less than $250,000 (or less than $1,000,000 for the paragraph (A)(4)(b) fee to apply). In this case, the executor or administrator of the decedent’s estate or the grantor must provide the certification required under paragraph (B)(1) of this appendix. (b) Nonresident alien individuals, foreign trusts, and foreign estates, “gross income” is equal to “total effectively connected income” as reported on their last Federal income tax return (as amended) filed for a full (12 months) taxable year ending before the date the request is filed, plus any income for the period from United States or foreign sources that is not taxable by the United States, whether by reason of § 103, an income tax treaty, § 871(h) (regarding portfolio interest), or otherwise, plus the total amount of any fixed or determinable annual or periodical income from United States sources, the United States tax liability for which is satisfied by withholding at the source. “Total effectively connected income” is a line item on Federal tax returns. For example, if the 2020 Form 1040-NR, U.S. Nonresident Alien Income Tax Return, is the most recent 12-month taxable year return filed by a nonresident alien individual, “total effectively connected income” on the Form 1040-NR is the amount entered on line 9. In the case of a request for a letter ruling or closing agreement from a foreign estate or trust that, at the time the request is filed, has not filed a Federal income tax return for a full taxable year, the reduced user fee in paragraph (A)(4)(a) of this Appendix will apply if the decedent’s or (in the case of an individual grantor) the grantor’s total income or total effectively connected income, as relevant, as reported on the last Federal income tax return filed for a full taxable year ending before the date of death or the date of the transfer, taking into account any additions required to be made to total income or total effectively connected income described respectively in paragraph (B)(2)(a) of this Appendix or in this paragraph (B)(2)(b), is less than $250,000 (or less than $1,000,000 for the paragraph (A)(4)(b) fee to apply). In this case, the executor or administrator of the decedent’s estate or the grantor must provide the certification required under paragraph (B)(1) of this Appendix. (3) Gross income for a request involving a business-related tax issue. For purposes of the reduced user fees provided in para- graphs (A)(4)(a) and (b) of this Appendix of— (a) U.S. citizens and resident alien individuals, domestic trusts, and domestic estates, “gross income” is equal to gross income as defined under paragraph (B)(2)(a) of this Appendix, plus “cost of goods sold” as reported on the same Federal income tax return. (b) Nonresident alien individuals, foreign trusts, and foreign estates, “gross income” is equal to gross income as defined under paragraph (B)(2)(b) of this Appendix, plus “cost of goods sold” as reported on the same Federal income tax return. (c) Partnerships with a Form 1065 filing requirement and corporations (foreign and domestic), “gross income” is equal to “total income” as reported on their last Federal tax return (as amended) filed for a full (12 months) taxable year ending before the date the request is filed, plus “cost of goods sold” as reported on the same Federal tax return, plus any interest income not subject to tax under § 103 (interest on state and local bonds) for that period. Partnerships with a Form 1065 filing requirement should also include “gross rents” reported on Form 8825 at line 2, as well as the income amounts reported on Schedule K Form 1065 at lines 3a, 5, 6a, 7, 8, 9a, 10, and 11 from the same Federal tax return described in the preceding sentence to calculate “gross income” for the purpose of applying the reduced user fee in paragraph (A)(4) of this Appendix. S Corporations with a Form 1120S filing requirement should also include “gross rents” reported on Form 8825 at line 2, as well as the income amounts reported on Schedule K Form 1120S at Bulletin No. 2023–1 89 January 3, 2023 lines 3a, 4, 5a, 6, 7, 8a, 9, and 10 from the same Federal tax return described in the first sentence of this paragraph to calculate “gross income” for the purpose of applying the reduced user fee in paragraph (A)(4) of this Appendix. If a partnership or S Corporation is not required to file or a C corporation is not subject to tax, “total income” and “cost of goods sold” are the amounts that the partner- ship or corporation would have reported on the Federal tax return if the partnership or S Corporation had been required to file or the C corporation had been subject to tax. “Cost of goods sold” and “total income” are line items on Federal tax returns. For example, if the 2020 Form 1065, U.S. Return of Partnership Income, is the most recent 12-month taxable year return filed by a partnership, “cost of goods sold” and “total income” on the Form 1065 are the amounts entered on lines 2 and 8, respectively; if the 2020 Form 1120, U.S. Corporation Income Tax Return, is the most recent 12-month taxable year return filed by a domestic corporation, “cost of goods sold” and “total income” on the Form 1120 are the amounts entered on lines 2 and 11, respectively; and if the 2020 Form 1120S, U.S. Income Tax Return for an S Corpora- tion, is the most recent 12-month taxable year return filed by an S corporation, “cost of goods sold” and “total income” on the Form 1120S are the amounts entered on lines 2 and 6, respectively. If, at the time the request is filed, a partnership or S corporation required to file or a C corporation subject to tax has not filed a Federal tax return for a full taxable year, the reduced user fee in paragraph (A)(4)(a) or (b) of this Appendix will apply if, in the aggre- gate, the partners’ or the shareholders’ gross income (as defined in paragraph (B)(3)(a), (b), or (c), of this Appendix, as applicable) is less than $250,000 for purposes of paragraph (A)(4)(a) or $1 million for purposes of paragraph (A)(4)(b) for the last full (12 months) taxable year ending before the date the request is filed. In this case, the partners or the shareholders must provide the certification required under paragraph (B)(1) of this Appendix. (4) Gross income for a request involving an exempt organization or governmental entity. For purposes of the reduced user fees provided in paragraphs (A)(4)(a) and (b) of this Appendix of— (a) Organizations exempt from income tax under “Subchapter F-Exempt Organizations” of the Code, “gross income” is equal to the amount of gross receipts for the last full (12 months) taxable year ending before the date the request for a letter ruling or closing agreement is filed. (b) State, local, and Indian tribal government entities, “gross income” is equal to the annual operating revenue of the govern- ment requesting the ruling for its last fiscal year ending before the date of the ruling request. The annual operating revenue is to be determined at the government level and not at the level of the government entity or agency making the request. (5) Special rules for determining gross income. For purposes of paragraphs (B)(2), (3) and (4) of this Appendix, the following rules apply for determining gross income. (a) Gross income of individuals, trusts, and estates. (1) In the case of a request from a married individual, the gross incomes (as defined in paragraph (B)(2) or (3) of this Appendix, as applicable) of the applicant and the applicant’s spouse must be combined. This rule does not apply to an individual: (i) who is legally separated from his or her spouse and (ii) who did not file a joint income tax return; and (2) If there are two or more applicants filing the request, the gross incomes (as defined in paragraph (B)(2) or (3) of this Appendix, as applicable) of the applicants must be combined. (b) Gross income of domestic partnerships and corporations. (1) In the case of a request from a domestic C corporation, the gross income (as defined in paragraph (B)(3) of this Appendix) of (i) all members of the applicant’s controlled group (as defined in § 1563(a)), and (ii) any taxpayer who is involved in the transaction on which the letter ruling or closing agreement is requested, must be combined; and (2) In the case of a request from a domestic partnership, the gross income (as defined in paragraph (B)(3) of this Appendix) of (i) the partnership, and (ii) any partner who owns, directly or indirectly, 50 percent or more of the capital interest or profits interest in the partnership, must be combined. (3) In the case of a request from an S corporation, the gross income (as defined in paragraph (B)(3) of this Appendix) of (i) the S corporation, and (ii) any shareholder who owns 50 percent or more of the S corporation, must be combined. (c) Gross income of exempt organizations. If there are two or more organizations exempt from income tax under Subchapter F filing the request, the gross receipts (as defined in paragraph (B)(4)(a) of this Appendix) of the applicants must be combined. (6) When gross income depends on a favorable ruling. If a taxpayer’s qualification for a reduced user fee under paragraphs (A) (4)(a) and (b) of this Appendix depends on the receipt of a favorable ruling, the taxpayer must pay the higher fee with the request and cannot assume that the Service will rule favorably. If a favorable ruling is issued, and as a result of the ruling the taxpayer’s gross income is reduced such that the taxpayer would qualify for a reduced user fee, the amount that the taxpayer paid in excess of the reduced user fee will be returned to the taxpayer. See section 15.09. January 3, 2023 90 Bulletin No. 2023–1 APPENDIX B SAMPLE FORMAT FOR A LETTER RULING REQUEST INSTRUCTIONS To assist you in preparing a letter ruling request, the Service is providing this sample format. You are not required to use this sam- ple format. If your request is not identical or similar to the sample format, the different format will not affect consideration of your request. (Insert the date of request) Internal Revenue Service Insert either: Associate Chief Counsel (insert one of the following: Corporate; Financial Institutions and Products; Income Tax and Accounting; International; Passthroughs and Special Industries; or Procedure and Administration) or Deputy Associate Chief Coun- sel (insert either Employee Benefits or Exempt Organizations and Employment Taxes) Attn: CC:PA:LPD:TSS P.O. Box 7604 Benjamin Franklin Station Washington, DC 20044 Dear Sir or Madam: (Insert the name of the taxpayer) requests a ruling on the proper treatment of (insert the subject matter of the letter ruling request) under section (insert the number) of the Internal Revenue Code. [If the taxpayer is requesting expedited handling, a statement to that effect must be attached to, or contained in, the letter ruling re- quest. The statement must explain the need for expedited handling. See section 7.02(4) of Rev. Proc. 2023-1, this revenue procedure. Hereafter, all references are to this revenue procedure unless otherwise noted.] A. STATEMENT OF FACTS 1. Taxpayer Information [Provide the statements required by sections 7.01(1)(a) and (b).] 2. Description of Taxpayer’s Business Operations [Provide the statement required by section 7.01(1)(c).] 3. Facts Relating to Transaction [The ruling request must contain a complete statement of the facts relating to the transaction that is the subject of the letter ruling request. This statement must include a detailed description of the transaction, including material facts in any accompanying documents, and the business reasons for the transaction. See sections 7.01(1)(d), 7.01(1)(e), and 7.01(2).] B. RULING REQUESTED [The ruling request should contain a concise statement of the ruling requested by the taxpayer. The Service prefers that the lan- guage of the requested ruling be exactly the same as the language the taxpayer wishes to receive.] C. STATEMENT OF LAW [The ruling request must contain a statement of the law in support of the taxpayer’s views or conclusion and identify any pending legislation that may affect the proposed transaction. The taxpayer also is strongly encouraged to identify and discuss any authorities believed to be contrary to the position advanced in the ruling request. See sections 7.01(6), 7.01(10), 7.01(10), and 7.01(11).] D. ANALYSIS [The ruling request must contain a discussion of the facts and an analysis of the law. The taxpayer also is strongly encouraged to identify and discuss any authorities believed to be contrary to the position advanced in the ruling request. See sections 7.01(3), 7.01(6), 7.01(9), 7.01(10), and 7.01(11).] E. CONCLUSION [The ruling request should contain a statement of the taxpayer’s conclusion on the ruling requested.] Bulletin No. 2023–1 91 January 3, 2023 F. PROCEDURAL MATTERS 1. Revenue Procedure 2023-1 Statements a. [Provide the statement required by section 7.01(4) regarding whether any return of the taxpayer, a related party within the meaning of § 267 or § 707(b)(1), or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504, or any predecessor would be affected by the requested letter ruling or determination letter, and whether any such return is currently under examination, before Appeals, or before a Federal court, or was previously under examination, before Appeals, or before a Federal court.] b. [Provide the statement required by section 7.01(5)(a) regarding whether the Service previously ruled on the same or similar issue for the taxpayer, a related party, or a predecessor. Please further note that if a reduced user fee is being submitted, a certification of eligibility for the reduced fee must be included with the ruling request.] c. [Provide the statement required by section 7.01(5)(b) regarding whether the taxpayer, a related party, a predecessor, or any representatives previously submitted a request (including an application for change in method of accounting) involving the same or similar issue but withdrew the request before a letter ruling or determination letter was issued.] d. [Provide the statement required by section 7.01(5)(c) regarding whether the taxpayer, a related party, or a predecessor previously submitted a request (including an application for change in method of accounting) involving the same or a similar issue that is currently pending with the Service.] e. [Provide the statement required by section 7.01(5)(d) regarding whether, at the same time as this request, the taxpayer or a related party is presently submitting another request (including an application for change in method of accounting) involving the same or similar issue to the Service.] f. [Provide the statement required by section 7.01(5)(e) regarding whether the taxpayer or a related party had, or has scheduled, a pre-submission conference involving the same or a similar issue.] g. [If the letter ruling request involves the interpretation of a substantive provision of an income or estate tax treaty, provide the statement required by section 7.01(6) regarding whether the tax authority of the treaty jurisdiction has issued a ruling on the same or similar issue for the taxpayer, a related party, or a predecessor; whether the same or similar issue is being examined, or has been settled, by the tax authority of the treaty jurisdiction or is otherwise the subject of a closing agreement in that jurisdiction; and whether the same or similar issue is being considered by the competent authority of the treaty jurisdiction.] h. [If the letter ruling request involves a transaction between a taxpayer and a related party and either the taxpayer or the related party is located in a foreign country, provide the statement required by section 7.01(7) regarding whether this letter ruling potentially relates to any one of these categories (include all that apply): Preferential Regime; Transfer Pricing; Downward Adjustment; Treaty Permanent Establishment; Related Party Conduit.] i. [Provide the statement required by section 7.01(9) regarding whether the law in connection with the letter ruling request is uncertain and whether the issue is adequately addressed by relevant authorities.] j. [If the taxpayer determines that there are no contrary authorities, a statement in the request to this effect should be included. See section 7.01(10).] k. [If the taxpayer wants to have a conference on the issues involved in the letter ruling request, the ruling request should contain a statement to that effect. See section 7.02(6).] l. [If the taxpayer is requesting a copy of any document related to the letter ruling request to be sent by fax, electronic facsimile, or encrypted email attachment, the ruling request should contain a statement to that effect. See section 7.02(5).] m. [If the taxpayer is requesting separate letter rulings on multiple issues, the letter ruling request should contain a statement to that effect. See section 7.02(1).] n. [If the taxpayer is seeking to obtain the user fee provided in paragraph (A)(5)(a) of Appendix A for substantially identical letter rulings, the letter ruling request must contain the statements required by section 15.07.] 2. Administrative a. [The ruling request should state: “The deletion statement and checklist required by Rev. Proc. 2023-1 are enclosed.” See sections 7.01(12) and 7.01(18).] b. [The ruling request should state: “The required user fee of $ (Insert the amount of the fee) has been paid through www.pay. gov” See section 15.09 and Appendix A.] c. [If the taxpayer’s authorized representative is to sign the letter ruling request or is to appear before the Service in connection with the request, the ruling request should state: “A Power of Attorney is enclosed.” See sections 7.01(14), 7.01(15), and 7.02(2).] Sincerely yours, (Insert the name of the taxpayer or the taxpayer’s authorized representative) By: January 3, 2023 92 Bulletin No. 2023–1 Signature Date Typed or printed name of person signing request DECLARATION: [See section 7.01(16).] Under penalties of perjury, I declare that I have examined this request, including accompanying documents, and, to the best of my knowledge and belief, the request contains all the relevant facts relating to the request, and such facts are true, correct, and complete. (Insert the name of the taxpayer) By: _____________ Signature Title Date (must be signed by taxpayer, not by taxpayer’s representative, see section 7.01(16)(b) of this revenue procedure) Typed or printed name of person signing declaration [If the taxpayer is a corporation that is a member of an affiliated group filing consolidated returns, the above declaration must also be signed and dated by an officer of the common parent of the group. See section 7.01(16).] Bulletin No. 2023–1 93 January 3, 2023 APPENDIX C CHECKLIST IS YOUR LETTER RULING REQUEST COMPLETE? INSTRUCTIONS The Service will be able to respond more quickly to your letter ruling request if it is carefully prepared and complete. Use this checklist to ensure that your request is in order. Complete the four items of information requested before the checklist. Answer each question by circling “Yes,” “No,” or “N/A.” When a question contains a place for a page number, insert the page number (or numbers) of the request that gives the information called for by a “Yes” answer to a question. Sign and date the checklist (as taxpayer or authorized representative) and place it on top of your request. If you are an authorized representative submitting a request for a taxpayer, you must include a completed checklist with the request or the request will either be returned to you or substantive consideration of it will be deferred until a completed checklist is submitted. If you are a taxpayer preparing your own request without professional assistance, an incomplete checklist will not cause the return of your request or defer substantive consideration of your request. Y ou should still complete as much of the checklist as possible and submit it with your request. TAXPAYER’S NAME TAXPAYER’S I.D. NO. ATTORNEY/P.O.A. PRIMARY CODE SECTION CIRCLE ONE ITEM Yes No 1. Does your request involve an issue under the jurisdiction of the Associate Chief Counsel (Corporate), the Associ- ate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), the Associate Chief Coun- sel (Financial Institutions and Products), the Associate Chief Counsel (Income Tax and Accounting), the Associate Chief Counsel (International), the Associate Chief Counsel (Passthroughs and Special Industries), or the Associate Chief Counsel (Procedure and Administration)? See section 3 of Rev. Proc. 2023-1, this revenue procedure. For issues under the jurisdiction of other offices, see section 4 of this revenue procedure. (Hereafter, all references are to this revenue procedure unless otherwise noted.) Yes No 2. Have you read Rev. Proc. 2023-1, Rev. Proc. 2023-3, and Rev. Proc. 2023-7, this Bulletin, to see if part or all of the request involves a matter on which letter rulings are not issued or are ordinarily not issued? Yes No N/A 3. If your request involves a matter on which letter rulings are not ordinarily issued, have you given compelling reasons to justify the issuance of a letter ruling? Before preparing your request, you may want to call the branch in the Office of Associate Chief Counsel (Corporate), the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), the Office of Associate Chief Counsel (Financial Institutions and Products), the Office of Associate Chief Counsel (Income Tax and Accounting), the Office of Associate Chief Counsel (International), the Office of Associate Chief Counsel (Passthroughs and Special Industries), or the Of- fice of Associate Chief Counsel (Procedure and Administration) responsible for substantive interpretations of the principal Internal Revenue Code section on which you are seeking a letter ruling to discuss the likelihood of an exception. For matters under the jurisdiction of— (a) the Office of Associate Chief Counsel (Corporate), the Office of Associate Chief Counsel (Employee Bene- fits, Exempt Organizations, and Employment Taxes), the Office of Associate Chief Counsel (Financial Institutions and Products), the Office of Associate Chief Counsel (Income Tax and Accounting), the Office of Associate Chief Counsel (Passthroughs and Special Industries), or the Office of the Associate Chief Counsel (Procedure and Ad- ministration), the appropriate branch to call may be obtained by calling (202) 317-5221 (not a toll-free call); (b) the Office of the Associate Chief Counsel (International), the appropriate branch to call may be obtained by calling (202) 317-3800 (not a toll-free call). January 3, 2023 94 Bulletin No. 2023–1 Yes No N/A 4. If the request involves a retirement plan qualification matter relating to § 401(a), § 409, or § 4975(e)(7), have you Page demonstrated that the request satisfies section 4.02(12) of Rev. Proc. 2023-3, this Bulletin, for a ruling? Yes No N/A 5. If the request deals with a completed transaction, have you filed a return containing a tax position on the completed Page transaction? See section 5.01. Yes No 6. Are you requesting the letter ruling on a hypothetical situation or question? See section 6.12. Yes No 7. Are you requesting the letter ruling on alternative plans of a proposed transaction? See section 6.12. Yes No 8. Are you requesting the letter ruling for only part of an integrated transaction? Yes No 9. Are you requesting a letter ruling under the jurisdiction of Associate Chief Counsel (Corporate) on a significant Page __ issue (within the meaning of section 3.01(60) of Rev. Proc. 2023-3, this Bulletin) with respect to a transaction de- scribed in § 332, § 351, § 355, or § 1036 or a reorganization within the meaning of § 368? See section 6.03(2). Yes No 10. Are you requesting the letter ruling for a business, trade, industrial association, or similar group concerning the application of tax law to its members? See section 6.05. Yes No 11. Are you requesting the letter ruling for a foreign government or its political subdivision? See section 6.07. Yes No 12. Have you included a complete statement of all the facts relevant to the transaction? See section 7.01(1). Page Yes No N/A 13. Have you submitted with the request true copies of all wills, deeds, and other documents relevant to the trans- action, and labeled and attached them in alphabetical sequence? See section 7.01(2). Yes No N/A 14. Have you submitted with the request a copy of all applicable foreign laws, and certified English translations of documents that are in a language other than English or of foreign laws in cases where English is not the official language of the foreign country involved? See section 7.01(2). Yes No 15. Have you included an analysis of facts and their bearing on the issues? Have you included, rather than merely incorporated by reference, all material facts from the documents in the request? See section 7.01(3). Yes No 16. Have you included the required statement regarding whether any return of the taxpayer (or any related party Page within the meaning of § 267 or § 707(b)(1), or any member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504, or any predecessor) would be affected by the requested letter ruling or determination letter and whether any such return is currently or was previously under examination, before Appeals, or before a Federal court? See section 7.01(4). Yes No 17. Have you included the required statement regarding whether the Service previously ruled on the same or similar Page issue for the taxpayer, a related party, or a predecessor? See section 7.01(5)(a). Yes No 18. Have you included the required statement regarding whether the taxpayer, a related party, a predecessor, or Page any representatives previously submitted a request (including an application for change in method of accounting) involving the same or similar issue but withdrew the request before the letter ruling or determination letter was issued? See section 7.01(5)(b). Yes No 19. Have you included the required statement regarding whether the taxpayer, a related party, or a predecessor Page previously submitted a request (including an application for change in method of accounting) involving the same or similar issue that is currently pending with the Service? See section 7.01(5)(c). Yes No 20. Have you included the required statement regarding whether, at the same time as this request, the taxpayer or a Page related party is presently submitting another request (including an application for change in method of accounting) involving the same or similar issue to the Service? See section 7.01(5)(d). Bulletin No. 2023–1 95 January 3, 2023 Yes No 21. Have you included the required statement regarding whether the taxpayer or a related party had, or has scheduled, Page __ a pre-submission conference involving the same or a similar issue? See section 7.01(5)(e). Yes No N/A 22. If your request involves the interpretation of a substantive provision of an income or estate tax treaty, have you Page included the required statement regarding whether the tax authority of the treaty jurisdiction has issued a ruling on the same or similar issue for the taxpayer, a related party, or a predecessor; whether the same or similar issue is being examined, or has been settled, by the tax authority of the treaty jurisdiction or is otherwise the subject of a closing agreement in that jurisdiction; and whether the same or similar issue is being considered by the competent authority of the treaty jurisdiction? See section 7.01(6). Yes No N/A 23. If your request involves a transactionbetween a taxpayer and a related party and either the taxpayer or the related Page __ party is located in a foreign country, have you included the required statement regarding whether the letter ruling relates to any one of these categories (include all that apply: Preferential Regime; Transfer Pricing; Downward Adjustment; Treaty Permanent Establishment; Related Party Conduit? See section 7.01(7). Yes No N/A 24. If your request is for recognition of Indian tribal government status or status as a political subdivision of an Page Indian tribal government, does your request contain a letter from the Bureau of Indian Affairs regarding the tribe’s status? See section 7.01(8), which states that taxpayers are encouraged to submit this letter with the request and provides the address for the Bureau of Indian Affairs. Yes No 25. Have you included the required statement of relevant authorities in support of your views? See section 7.01(9). Page Yes No 26. Have you included the required statement regarding whether the law in connection with the request is uncertain Page and whether the issue is adequately addressed by relevant authorities? See section 7.01(9). Yes No 27. Does your request discuss the implications of any legislation, tax treaties, court decisions, regulations, notices, Pages revenue rulings, or revenue procedures that you determined to be contrary to the position advanced? See section 7.01(10), which states that taxpayers are encouraged to inform the Service of such authorities. Yes No N/A 28. If you determined that there are no contrary authorities, have you included a statement to this effect in your Page request? See section 7.01(10). Yes No N/A 29. Have you included in your request a statement identifying any pending legislation that may affect the proposed Page transaction? See section 7.01(11). Yes No 30. Have you included the deletion statement required by § 6110 and placed it on the top of the letter ruling request as required by section 7.01(12)(b)? Yes No 31. Have you (or your authorized representative) signed and dated the request or separately transmitted a signature Page in an acceptable electronic form? See section 7.01(13). Yes No N/A 32. If the request is signed by your representative or if your representative will appear before the Service in con- nection with the request, is the request accompanied by a properly prepared and signed power of attorney with the signatory’s name typed or printed? See section 7.01(15). Yes No 33. Have you signed, dated, and included the penalties of perjury statement in the format required by section 7.01(16)? Page Yes No N/A 34. If you are requesting separate letter rulings on different issues involving one factual situation, have you included Page a statement to that effect in each request? See section 7.02(1). Yes No N/A 35. If you want copies of the letter ruling sent to a representative, does the power of attorney contain a statement to that effect? See section 7.02(2). Yes No N/A 36. If you do not want a copy of the letter ruling to be sent to any representative, does the power of attorney contain a statement to that effect? See section 7.02(2). January 3, 2023 96 Bulletin No. 2023–1 Yes No N/A 37. If you are making a two-part letter ruling request, have you included a summary statement of the facts you believe to be controlling? See section 7.02(3). Yes No N/A 38. If you want your letter ruling request to be processed ahead of the regular order or by a specific date, have you Page requested expedited handling in the manner required by section 7.02(4) and stated a compelling need for such ac- tion in the request? See section 7.02(4). Yes No N/A 39. If you are requesting a copy of any document related to the letter ruling request to be sent by fax or electronic Page facsimile, have you included a statement to that effect? See section 7.02(5). Yes No N/A 40. If you are requesting a copy of any document related to the letter ruling request to be sent by encrypted email attachment, have you specified an acceptable encryption method to be used and included the appropriate MOUs from Appendices G and H, signed and dated by the taxpayer? See section 7.02(5) and 7.04(3). Yes No N/A 41. If you want to have a conference on the issues involved in the request, have you included a request for conference Page in the letter ruling request? See section 7.02(6). Yes No N/A 42. If you are submitting your request on paper, are you submitting additional copies if necessary? See section 7.04(1). Yes No N/A 43. If you are submitting your request by electronic facsimile or encrypted email attachment, have you provided clear titles for documents and files, and broken up the request into smaller components for transmission if neces- sary? See section 7.04(2) and (3). Yes No N/A 44. If you are submitting your request by encrypted email attachment, have you used an acceptable file format and included the appropriate MOUs from Appendices G and H, signed and dated by the taxpayer? See section 7.04(3). Yes No 45. Have you paid the correct user fee through www.pay.gov? See section 15 and Appendix A to determine the cor- rect amount. Yes No N/A 46. If you qualify for a reduced user fee because your gross income is less than $250,000, have you included the Page __ required certification? See paragraphs (A)(4)(a) and (B)(1) of Appendix A. Yes No N/A 47. If you qualify for a reduced user fee because your gross income is less than $1 million, have you included the Page __ required certification? See paragraphs (A)(4)(b) and (B)(1) of Appendix A. Yes No N/A 48. If you qualify for the user fee for substantially identical letter rulings, have you included the required information? Page See section 15.07(2) and paragraph (A)(5)(a) of Appendix A. Yes No N/A 49. If you qualify for the user fee for a § 301.9100 request to extend the time for filing an identical change in method Page of accounting on a single Form 3115, Application for Change in Accounting Method, have you included the re- quired information? See section 15.07(4) and paragraph (A)(5)(d) of Appendix A. Yes No N/A 50. If your request is covered by any of the checklists, guideline revenue procedures, notices, safe harbor revenue Rev. Proc. procedures, or other special requirements listed in Appendix F, have you complied with all of the requirements of __________ the applicable revenue procedure or notice? __________ List other applicable revenue procedures or notices, including checklists, used or relied upon in the preparation of __________ this letter ruling request (Cumulative Bulletin or Internal Revenue Bulletin citation not required). Yes No N/A 51. If you are requesting relief under § 7805(b) (regarding retroactive effect), have you complied with all of the Page requirements in section 11.11? Yes No N/A 52. If you are requesting relief under § 301.9100 for a late entity classification election, have you included a Page __ statement that complies with section 4.04 of Rev. Proc. 2009-41, 2009-39 I.R.B. 439? See section 5.03(5) of this revenue procedure. Bulletin No. 2023–1 97 January 3, 2023 Yes No N/A 53. If you are requesting relief under § 301.9100, and your request involves a year that is currently under examination Page __ or with Appeals, have you included the required notification, which also provides the name and telephone number of the examining agent or Appeals officer? See section 7.01(4). Yes No 54. If you are requesting relief under § 301.9100, have you included the affidavit(s) and declaration(s) required by § 301.9100-3(e)? See section 5.03(1). Yes No N/A 55. If you are requesting relief under § 301.9100–3, and the period of limitations on assessment under § 6501(a) will expire for any year affected by the requested relief before the anticipated receipt of a letter ruling, have you secured consent under § 6501(c)(4) to extend the period of limitations on assessment for the year(s) at issue? See section 5.03(2). Yes No 56. Have you addressed your request to the attention of the Associate Chief Counsel (Corporate), the Associate Chief Counsel (Financial Institutions and Products), the Associate Chief Counsel (Income Tax and Accounting), the Associate Chief Counsel (International), the Associate Chief Counsel (Passthroughs and Special Industries), the Associate Chief Counsel (Procedure and Administration), the Deputy Associate Chief Counsel (Employee Bene- fits), or the Deputy Associate Chief Counsel (Exempt Organizations and Employment Taxes), as appropriate? The mailing address for packages submitted on paper is: Internal Revenue Service Attn: CC:PA:LPD:TSS P.O. Box 7604 Ben Franklin Station Washington, DC 20044 If a private delivery service is used, the address is: Internal Revenue Service Attn: CC:PA:LPD:TSS, Room 5336 1111 Constitution Ave., NW Washington, DC 20224 Packages submitted on paper should be marked RULING REQUEST SUBMISSION. Improperly addressed re- quests may be delayed (sometimes for over a week) in reaching CC:PA:LPD:TSS for initial processing. _______________________ Signature Title or Authority Date Typed or printed name of person signing checklist January 3, 2023 98 Bulletin No. 2023–1 APPENDIX D ADDITIONAL CHECKLIST FOR GOVERNMENT PICK-UP PLAN RULING REQUESTS In order to assist Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) in processing a ruling request involving government pick-up plans, in addition to the items in Appendix C please check the following list. Yes No N/A Page ___ 1. Is the plan qualified under § 401(a) of the Code? (Evidence of qualification or representation that the plan is qualified.) Yes No N/A Page ___ 2. Is the organization that established the plan a State or political subdivision thereof, or any agency or instrumen- tality of the foregoing? An example of this would be a representation that the organization that has established the plan is a political subdivision or municipality of the State. Yes No N/A Page ___ 3. Is there specific information regarding who are the eligible participants? Yes No N/A Page ___ 4. Are the contributions that are the subject of the ruling request mandatory employee contributions? These contribu- tions must be for a specified dollar amount or a specific percentage of the participant’s compensation and the dollar amount or percentage of compensation cannot be subject to change. Yes No N/A Page ___ 5. Does the plan provide that the participants do not have the election to opt in and/or out of the plan? Yes No N/A Page ___ 6. Are copies of the enacting legislation providing that the contributions although designated as employee contribu- tions are being paid by the employer in lieu of contributions by the employee included? Yes No N/A Page ___ 7. Are copies of the specific enabling authorization that provides the employee must not have the option of choosing to receive the contributed amounts directly instead of having them paid by the employer to the plan included? For example, a resolution, ordinance, plan provision, or collective bargaining agreement could specify this information. Bulletin No. 2023–1 99 January 3, 2023 APPENDIX E ADDITIONAL CHECKLIST FOR CHURCH PLAN RULING REQUESTS In order to assist Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) in processing a church plan ruling request, in addition to the items in Appendix C, please check the following list. Yes No N/A Page ___ 1. Is there specific information showing that the submission is on behalf of a plan established by a named church or convention or association of churches? The information must show how the sponsoring organization, if not a church or convention or association of churches, is controlled by, or associated with, the named church or convention or association of churches. For example, the board of directors of the sponsoring organization may be made up of members of the named church, or the sponsoring organization might be listed in the church’s official directory of related organizations whose mission is to further the objectives of the church. In order to be considered associated with a church or convention or association of churches, the organization must share common religious bonds and convictions with that church or convention or association of churches. Yes No N/A Page ___ 2. Is there specific information showing that the organization that has established the plan is a tax-exempt organiza- tion as described in § 501 of the Code? Yes No N/A Page ___ 3. Is there a representation that the plan for which the ruling is being requested is qualified under § 401(a) of the Code or meets the requirements of § 403(b) of the Code? Yes No N/A Page ___ 4. Does the ruling request clearly state who are the eligible participants and the name of the employer of these eli- gible participants? Yes No N/A Page ___ 5. Is there a representation that none of the eligible participants are or can be considered employed in connection with one or more unrelated trades or businesses within the meaning of § 513 of the Code? Yes No N/A Page ___ 6. Is there a representation that all of the eligible participants are or will be employed by the named church or con- vention or association of churches, and will not include employees of for-profit entities? An example of an eligible employee includes a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry. Yes No N/A Page ___ 7. Is there specific information showing an existing plan committee whose principal purpose or function is the ad- ministration or funding of the plan? This committee must be controlled by or associated with the named church or convention or association of churches. Yes No N/A Page ___ 8. Is the composition of the committee stated? Yes No N/A Page ___ 9. Did the plan sponsor provide a written notice to interested persons that a letter ruling under § 414(e) of the Code on behalf of a church plan will be submitted to the IRS? (see Rev. Proc. 2011-44). Yes No N/A Page ___ 10. Does the ruling request include a copy of the notice? Yes No N/A Page ___ 11. Is there a representation as to whether an election has ever been made under § 1.410(d)-1 of the Federal Income Tax Regulations to apply certain provisions of the Code and ERISA to the plan? January 3, 2023 100 Bulletin No. 2023–1 APPENDIX F CHECKLISTS, GUIDELINE REVENUE PROCEDURES, NOTICES, SAFE HARBOR REVENUE PROCEDURES, AND AUTOMATIC CHANGE REVENUE PROCEDURES Specific revenue procedures and notices supplement the general instructions for requests ex- plained in section 7 of this revenue procedure and apply to requests for letter rulings or determi- nation letters regarding the Code sections and matters listed in this section. Checklists, guideline reve- nue procedures, and notices .01 For requests relating to the following Code sections and subject matters, refer to the following checklists, guideline revenue procedures, and notices. CODE OR REGULATION SECTION REVENUE PROCEDURE AND NOTICE 103, 141 - 150, 1394, 1400L(d), 1400N(a), 1400U- 1, 1400U-3, 7478, and 7871 Issuance of state or local obligations Rev. Proc. 96-16, 1996-1 C.B. 630 (for a reviewable ruling under § 7478 and a nonreviewable ruling); Rev. Proc. 88-31, 1988-1 C.B. 832 (for approval of areas of chronic economic distress); and Rev. Proc. 82-26, 1982-1 C.B. 476 (for “on behalf of” and similar issuers). For approval of areas of chronic economic distress, Rev. Proc. 88-31 explains how this request for approval must be submitted to the Assistant Secretary for Housing/Federal Housing Commissioner of the De- partment of Housing and Urban Development. 1.166-2(d)(3) Uniform express determina- tion letter for making election Rev. Proc. 92-84, 1992-2 C.B. 489. Subchapter C-Corporate Distributions, Adjustments, Transfers, and Reorganiza- tions Rev. Proc. 77-37, 1977-2 C.B. 568, as amplified by Rev. Proc. 77-41, 1977-2 C.B. 574, Rev. Proc. 83-81, 1983-2 C.B. 598, and as modified by Rev. Proc. 89-30, 1989-1 C.B. 895 (see also Rev. Proc. 2023-3, this Bulletin); Rev. Proc. 84-42, 1984-1 C.B. 521 (superseded, in part, as to no-rule areas by Rev. Proc. 2023-3); Rev. Proc. 86-42, 1986-2 C.B. 722; Rev. Proc. 89-50, 1989-2 C.B. 631; Rev. Proc. 2017-52, 2017-41 I.R.B. 283 (relating to Transactional Rulings for Covered Transactions); and Rev. Proc. 2018-53, 2018-43 I.R.B. 667. But see section 3.01(60) of Rev. Proc. 2023-3, which states that the Service will not issue a letter ruling as to whether a transaction constitutes a reorganization within the meaning of § 368 (except as provided in section 6.03(2)(b) of this revenue procedure). However, the Service will issue a letter ruling addressing significant issues (within the meaning of section 3.01(60) of Rev. Proc. 2023-3) presented in a reorganiza- tion within the meaning of § 368. See section 6.03(2) of this revenue procedure. In addition, the Service will issue a Transactional ruling for a Covered Transaction, as described in Rev. Proc. 2017-52 (amplified and modified by Rev. Proc. 2018-53). 301 Nonapplicability on sales of stock of employer to defined contribution plan Rev. Proc. 87-22, 1987-1 C.B. 718. 302, 311 Checklist questionnaire Rev. Proc. 86-18, 1986-1 C.B. 551; and Rev. Proc. 77-41, 1977-2 C.B. 574. 302(b)(4) Checklist questionnaire Rev. Proc. 81-42, 1981-2 C.B. 611. 311 Checklist questionnaire Rev. Proc. 86-16, 1986-1 C.B. 546. 332 Checklist questionnaire See section 3.01 of Rev. Proc. 2023-3, this Bulletin, which states that the Service will not issue a letter ruling on whether a corporate distribution qualifies for nonrecognition treatment under § 332. However, the Service will issue a letter ruling addressing significant issues (within the meaning of section 3.01 of Rev. Proc. 2023-3) presented in a transaction described in § 332. The information and representations described in Rev. Proc. 90-52, 1990-2 C.B. 626, should be includ- ed in a letter ruling request only to the extent that they relate to the significant issues with respect to which the letter ruling is requested. See section 6.03(3) of this revenue procedure. Bulletin No. 2023–1 101 January 3, 2023 338 Extension of time to make elections Rev. Proc. 2003-33, 2003-1 C.B. 803, provides guidance as to how an automatic extension of time under § 301.9100-3 of the Treasury Regulations may be obtained to file elections under § 338. Rev. Proc. 2003-33 also informs taxpayers who do not qualify for the automatic extension of the information necessary to obtain a letter ruling. 351 Checklist questionnaire See section 3.01 of Rev. Proc. 2023-3, this Bulletin, which states that the Service will not issue a letter ruling on whether certain transfers to controlled corporations qualify for nonrecognition treatment under § 351. However, the Service will issue a letter ruling addressing significant issues (within the meaning of section 3.01 of Rev. Proc. 2023-3) presented in a transaction described in § 351. The information and representations described in Rev. Proc. 83-59, 1983-2 C.B. 575, should be included in a letter ruling request only to the extent that they relate to the significant issues with respect to which the letter ruling is requested. See section 6.03(3) of this revenue procedure. 355 Checklist questionnaire Rev. Proc. 2017-52, 2017-41 I.R.B. 283, and Rev. Proc. 2018-53, 2018-43 I.R.B. 667. See also section 6.03(2) of this revenue procedure. 368(a)(1)(E) Checklist questionnaire See section 3.01 of Rev. Proc. 2023-3, this Bulletin, which states that the Service will not issue a letter ruling as to whether a transaction constitutes a reorganization, including a recapitalization within the meaning of § 368(a)(1)(E) (or a transaction that qualifies under § 1036). However, the Service will issue a letter ruling addressing significant issues (within the meaning of section 3.01 of Rev . Proc. 2023-3) presented in a transaction described in § 368(a)(1)(E) (or in a transaction described in § 1036). The information and representations described in Rev. Proc. 81-60, 1981-2 C.B. 680, should be included in a letter ruling request only to the extent that they relate to the significant issues. See section 6.03(3) of this revenue procedure. 412, 4971(b) Additional tax (on failure to meet minimum funding standards) Rev. Proc. 81-44, 1981-2 C.B. 618, provides guidance for requesting a waiver of the 100 percent tax imposed under § 4971(b) on a pension plan that fails to meet the minimum funding standards of § 412. 412(c) Minimum funding standards Rev. Proc. 2004-15, 2004-1 C.B. 490, provides guidance for requesting a waiver of the minimum funding standards. 412(c)(7)(B) Minimum funding standards - restrictions on plan amend- ments Rev. Proc. 79-62, 1979-2 C.B. 576 provides guidance for requesting a determination that a plan amendment is reasonable and provides for only de minimis increases in plan liabilities in accor- dance with former § 412(f)(2)(A) (now § 412(c)(7)(B)(i)). 412(d)(2) Minimum funding standards - certain retroactive plan amendments Rev. Proc. 94-42, 1994-1 C.B. 717, as modified by Rev. Proc. 2023-4, this Bulletin, sets forth procedures under which a plan sponsor may file notice with and obtain approval for a retroactive amendment described in § 412(d)(2) (formerly § 412(c)(8)) and § 302(d)(2) of the Employee Re- tirement Income Security Act of 1974 (ERISA) that reduces prior accrued benefits. 414(e) Church plans Rev. Proc. 2011-44, 2011-39 I.R.B. 445 provides supplemental procedures for requesting a ruling relating to church plans under section 414(e). Rev. Proc. 2011-44 provides that plan participants and other interested persons must receive a notice when a letter ruling is requested and a copy of the notice must be submitted as part of the ruling request. Rev. Proc. 2011-44 also provides pro- cedures for the Service to receive and consider comments about the ruling request from interested persons. See Appendix E of this revenue procedure. 414(r) Qualified separate lines of business – administrative scrutiny Rev. Proc. 93-41, 1993-2 C.B. 536, sets forth procedures relating to the issuance of an administra- tive scrutiny determination, which is a determination by the Service as to whether a separate line of business satisfies the requirement of administrative scrutiny, within the meaning of § 1.414(r)- 6, for the testing year. January 3, 2023 102 Bulletin No. 2023–1 461(h) Alternative method for the in- clusion of common improve- ment costs in basis Rev. Proc. 92-29, 1992-1 C.B. 748. 482 Advance pricing agreements Rev. Proc. 2015-40, 2015-35 I.R.B. 236, and Rev. Proc. 2015-41, 2015-35 I.R.B. 263. 521 Appeal procedure with regard to adverse determination letters and revocation or modification of exemption letter rulings and determina- tion letters Rev. Proc. 2023-5, this Bulletin. 817(h) Closing agreement for inad- vertent failures of variable contracts Rev. Proc. 2008-41, 2008-2 C.B. 155. 860 Self Determination of Defi- ciency Dividend Rev. Proc. 2009-28, 2009-20 I.R.B. 1011. 877, 2107, and 2501(a)(3) Individuals who lose U.S. cit- izenship or cease to be taxed as long-term U.S. residents with a principal purpose to avoid U.S. taxes Notice 97-19, 1997-1 C.B. 394, as modified by Notice 98-34, 1998-2 C.B. 29, and as obsoleted in part by Notice 2005-36, 2005-1 C.B. 1007. 1059(c)(4) Fair market value of stock for purposes of election Rev. Proc. 86-33, 1987-29 C.B. 402, provides guidance to corporate taxpayers on how to make the election under section 1059(c)(4) and establish the fair market value of stock for purposes of that election. It provides an automatic procedure to value publicly traded stock and valuation procedures for other stock. 1362(b)(5) and 1362(f) Relief for late S corporation and related elections under certain circumstances Rev. Proc. 2013-30, 2013-36 I.R.B. 173. 1362(b)(5) and 301.7701-3 Automatic extensions of time for late S corporation election and late corporate entity classification Rev. Proc. 2013-30, 2013-36 I.R.B. 173. 1.1502-13(e)(3) Consent to treat intercompa- ny transactions on a separate entity basis and revocation of this consent Rev. Proc. 2009-31, 2009-27 I.R.B. 107. 1.1502-75(b) Consent to Be Included in a Consolidated Income Tax Return Rev. Proc. 2014-24, 2014-13 I.R.B. 879, provides a determination that certain subsidiary cor- porations are treated as if they had filed a Form 1122, Authorization and Consent of Subsidiary Corporation To Be Included in a Consolidated Income Tax Return, even though they failed to do so. Rev. Proc. 2014-24 also informs taxpayers who do not qualify for the automatic determination of the procedure for requesting such determination. Bulletin No. 2023–1 103 January 3, 2023 1.1502-76(a)(1) Consent to file a consolidated return where member(s) of the affiliated group use a 52- 53 week taxable year Rev. Proc. 89-56, 1989-2 C.B. 643, as modified by Rev. Proc. 2006-21, 2006-1 C.B. 1050. 1504(a)(3)(A) and (B) Waiver of application of § 1504(a)(3)(A) for certain corporations Rev. Proc. 2002-32, 2002-1 C.B. 959, as modified by Rev. Proc. 2006-21, 2006-1 C.B. 1050. 1552 Consent to elect or change method of allocating affil- iated group’s consolidated Federal income tax liability Rev. Proc. 90-39, 1990-2 C.B. 365, as clarified by Rev. Proc. 90-39A, 1990-2 C.B. 367, and as modified by Rev. Proc. 2006-21, 2006-1 C.B. 1050. 2642 Allocations of genera- tion-skipping transfer tax exemption Rev. Proc. 2004-46, 2004-2 C.B. 142, provides an alternative method for requesting relief to make a late allocation of the generation-skipping transfer tax exemption. Rev. Proc. 2004-46 also informs taxpayers who are denied relief or who are outside the scope of the revenue procedure of the information necessary for obtaining a letter ruling. 2652(a)(3) Reverse qualified terminable interest property elections Rev. Proc. 2004-47, 2004-2, C.B. 169, provides an alternative method for certain taxpayers to obtain an extension of time to make a late reverse qualified terminable interest property election under § 2652(a)(3). Rev. Proc. 2004-47 also informs taxpayers who are denied relief or who are outside the scope of the revenue procedure of the information necessary to obtain a letter ruling. 4980B Failure to satisfy continuation coverage requirements of group health plans Rev. Proc. 87-28, 1987-1 C.B. 770 (treating references to former § 162(k) as if they were refer- ences to § 4980B). 7701 Relief for a late classification election for a newly formed entity Rev. Proc. 2009-41, 2009-39 I.R.B. 439. 7701(a)(40) and 7871(d) Indian tribal governments and subdivision of Indian tribal governments Rev. Proc. 84-37, 1984-1 C.B. 513, as modified by Rev. Proc. 86-17, 1986-1 C.B. 550, and this revenue procedure (provides guidelines for obtaining letter rulings recognizing Indian tribal gov- ernment or tribal government subdivision status; also provides for inclusion in list of federally recognized Indian tribes published annually by the Department of the Interior, Bureau of Indian Affairs, or in list of recognized subdivisions of Indian tribal governments in revised versions of Rev. Proc. 84-36, 1984-1 C.B. 510, as modified and made permanent by Rev. Proc. 86-17). 301.7701-2(a) Classification of undivided fractional interests in rental real estate Rev. Proc. 2002-22, 2002-1 C.B. 733 (specifies the conditions under which the Service will con- sider a letter ruling request that an undivided fractional interest in rental real property (other than a mineral property as defined in § 614) is not an interest in a business entity). 301.7701-3 Automatic extensions of time for late S corporation election and late corporate entity classification Rev. Proc. 2013-30, 2013-36 I.R.B. 173. 301.9100-3 Extension of time to make entity classification election Rev. Proc. 2009-41, 2009-39 I.R.B. 439. January 3, 2023 104 Bulletin No. 2023–1 7702 Closing agreement for failure to account for charges for qualified additional benefits Rev. Proc. 2008-38, 2008-2 C.B. 139. 7702 Closing agreement for failed life insurance contracts Rev. Proc. 2008-40, 2008-2 C.B. 151. 7702A Closing agreement for inad- vertent non-egregious failure to comply with modified endowment contract rules Rev. Proc. 2008-39, 2008-2 C.B. 143. 7704(g) Revocation of election Notice 98-3, 1998-1 C.B. 333. SUBJECT MATTERSREVENUE PROCEDURE Accounting periods; changes in period Rev. Proc. 2002-39, 2002-1 C.B. 1046, as clarified and modified by Notice 2002-72, 2002-2 C.B. 843, as modified by Rev. Proc. 2003-34, 2003-1 C.B. 856, and modified by Rev. Proc. 2003- 79, 2003-2 C.B. 1036; and this revenue procedure, for which sections 1, 2.01, 2.02, 2.05, 3.04, 5.02, 6.03, 6.05, 6.07, 6.11, 7.01(1), 7.01(2), 7.01(3), 7.01(4), 7.01(5), 7.01(6), 7.01(9), 7.01(10), 7.01(11), 7.01(14), 7.01(15), 7.01(16), 7.02(2), 7.02(4), 7.02(5), 7.02(6), 7.04, 7.05, 7.06, 7.08, 8.01, 8.03, 8.04, 8.05, 8.06, 10, 11, 15, 17, 18, Appendix A, and Appendix F are applicable. Classification of liquidating trusts Rev. Proc. 82-58, 1982-2 C.B. 847, as modified and amplified by Rev. Proc. 94-45, 1994-2 C.B. 684, and as amplified by Rev. Proc. 91-15, 1991-1 C.B. 484 (checklist questionnaire), as modified and amplified by Rev. Proc. 94-45. Earnings and profits determi- nations Rev. Proc. 75-17, 1975-1 C.B. 677; this revenue procedure, sections 2.05, 3.04, 7, 8, and 10.05; and Rev. Proc. 2023-3, this Bulletin, section 3.01. Estate, gift, and genera- tion-skipping transfer tax issues Rev. Proc. 91-14, 1991-1 C.B. 482 (checklist questionnaire). Intercompany transactions; election not to defer gain or loss Rev. Proc. 2009-31, 2009-27 I.R.B. 107. Leveraged leasingRev. Proc. 2001-28, 2001-1 C.B. 1156, and Rev. Proc. 2001-29, 2001-1 C.B. 1160. Rate orders; regulatory agen- cy; normalization A letter ruling request that involves a question of whether a rate order that is proposed or issued by a regulatory agency will meet the normalization requirements of § 168(f)(2) (pre-Tax Reform Act of 1986, § 168(e)(3)) and former §§ 46(f) and 167(l) ordinarily will not be considered unless the taxpayer states in the letter ruling request whether— (1) the regulatory authority responsible for establishing or approving the taxpayer’s rates has re- viewed the request and believes that the request is adequate and complete; and (2) the taxpayer will permit the regulatory authority to participate in any Associate office confer- ence concerning the request. If the taxpayer or the regulatory authority informs a consumer advocate of the request for a letter ruling and the advocate wishes to communicate with the Service regarding the request, any such communication should be sent to: Internal Revenue Service, Associate Chief Counsel (Procedure and Administration), Attn: CC:PA:LPD:TSS, P.O. Box 7604, Benjamin Franklin Station, Wash- ington, DC 20044 (or, if a private delivery service is used: Internal Revenue Service, Associate Chief Counsel (Procedure and Administration), Attn: CC:PA:LPD:TSS, Room 5336, 1111 Con- stitution Ave., NW, Washington, DC 20224). These communications will be treated as third party contacts for purposes of § 6110. Bulletin No. 2023–1 105 January 3, 2023 Unfunded deferred compen- sation Rev. Proc. 71-19, 1971-1 C.B. 698, as amplified by Rev. Proc. 92-65, 1992-2 C.B. 428. See Rev . Proc. 92-64, 1992-2 C.B. 422, as modified by Notice 2000-56, 2000-2 C.B. 393, for the model trust for use in Rabbi Trust Arrangements. Safe harbor revenue proce- dures .02 For requests relating to the following Code sections and subject matters, refer to the following safe harbor revenue procedures. CODE OR REGULATION SECTION REVENUE PROCEDURE 23 and 36C Adoption credit for foreign adoptions Rev. Proc. 2010-31, 2010-40 I.R.B. 413. 103 and 141-150 Issuance of state or local obligations Rev. Proc. 2017-13, 2017-6 I.R.B. 787 (management contracts); and Rev. Proc. 2007-47, 2007-2 C.B. 108 (research agreements). 137 Exclusion for Employer Reimbursements Rev. Proc. 2010-31, 2010-40 I.R.B. 413. 162 Restaurant Small Wares Costs Rev. Proc. 2002-12, 2002-1 C.B. 374. 165 Losses from corrosive dry- wall Rev. Proc. 2010-36, 2010-42 I.R.B. 439. 165 Theft losses from fraudulent investment arrangements Rev. Proc. 2009-20, 2009-14 I.R.B. 749, as modified by Rev. Proc. 2011-58, 2011-50 I.R.B. 849. 167 and 168 Primary use of certain cable network assets described in asset class 48.42 of Rev. Proc. 87-56, 1987-2 C.B. 674 Section 9 of Rev. Proc. 2015-12, 2015-2 I.R.B. 266. 168 Depreciation of original and replacement tires for certain vehicles Rev. Proc. 2002-27, 2002-1 C.B. 802. 168 Depreciation of fiber optic node and trunk line of a cable system operator Section 8 of Rev. Proc. 2015-12, 2015-2 I.R.B. 266. 168 Recovery periods of cer- tain tangible assets used by wireless telecommunication carriers Rev. Proc. 2011-22, 2011-18 I.R.B. 737 263, 471 Treatment of rotable spare parts as inventory or depre- ciable property Rev. Proc. 2007-48, 2007-2 C.B. 110 January 3, 2023 106 Bulletin No. 2023–1 263 Safe harbor methods for track structure expenditures Rev. Proc. 2002-65, 2002-2 C.B. 700; Rev. Proc. 2001-46, 2001-2 C.B. 263. 263 Determination whether expenditures to maintain, replace or improve wireline network assets must be cap- italized Rev. Proc. 2011-27, 2011-18 I.R.B. 740. 263 Determination whether expenditures to maintain, replace or improve wireless network assets must be cap- italized Rev. Proc. 2011-28, 2011-18 I.R.B. 743. 263 Allocating success-based fees paid in business acquisitions or reorganizations Rev. Proc. 2011-29, 2011-18 I.R.B. 746. 263 Electric trade and distribution property assets Rev. Proc. 2011-43, 2011-37 I.R.B. 326. 263A Safe harbor methods for cer- tain motor vehicle dealerships Rev. Proc. 2010-44, 2010-49 I.R.B. 811. 280A Safe harbor method to deter- mine the amount of deduct- ible expenses attributable to certain business use of a residence Rev. Proc. 2013-13, 2013-6 I.R.B. 478. 280B Certain structural modifica- tions to a building not treated as a demolition Rev. Proc. 95-27, 1995-1 C.B. 704. 446 Film producer’s treatment of certain creative property costs Rev. Proc. 2004-36, 2004-1 C.B. 1063. 446 Bank’s treatment of uncol- lected interest Rev. Proc. 2007-33, 2007-1 C.B. 1289. 448 Nonaccrual-experience meth- od - book safe harbor method Rev. Proc. 2011-46, 2011-42 I.R.B. 518. 451 Safe harbor for capital cost reduction payments Rev. Proc. 2002-36, 2002-1 C.B. 993. Bulletin No. 2023–1 107 January 3, 2023 451 Treatment of gift cards issued to customers in exchange for returned merchandise Rev. Proc. 2011-17, 2011-5 I.R.B. 441. 451 Safe harbor for certain mi- nors’ trusts established under the Indian Gaming Regulato- ry Act (U.S.C. §§ 2701-2721) Rev. Proc. 2011-56, 2011-49 I.R.B. 834. 461 Safe harbor method for pay- roll tax liabilities for compen- sation Rev. Proc. 2008-25, 2008-1 C.B. 686. 471 Estimating inventory shrink- age Rev. Proc. 98-29, 1998-1 C.B. 857. 471 Valuation of automobile deal- er vehicle parts inventory Rev. Proc. 2002-17, 2002-1 C.B. 676. 471 Valuation of remanufactured cores Rev. Proc. 2003-20, 2003-1 C.B. 445. 471 Valuation of heavy equipment dealer parts inventory Rev. Proc. 2006-14, 2006-1 C.B. 350. 471 Rolling-average method of accounting for inventories Rev. Proc. 2008-43, 2008-2 C.B. 186. 475 Eligible positions Rev. Proc. 2007-41, 2007-1 C.B. 1492. 584(a) Qualification of a proposed common trust fund plan Rev. Proc. 92-51, 1992-1 C.B. 988. 642(c)(5) Qualification of trusts as pooled income funds Rev. Proc. 88-53, 1988-2 C.B. 712. 664 Charitable remainder trusts Rev. Proc. 2005-24, 2005-1 C.B. 909, as modified by Notice 2006-15, 2006-1 C.B. 501. 664(d)(1) Qualification of trusts as charitable remainder annuity trusts Rev. Proc. 2003-53, 2003-2 C.B. 230; Rev. Proc. 2003-54, 2003-2 C.B. 236; Rev. Proc. 2003-55, 2003-2 C.B. 242; Rev. Proc. 2003-56, 2003-2 C.B. 249; Rev. Proc. 2003-57, 2003-2 C.B. 257; Rev. Proc. 2003-58, 2003-2 C.B. 262; Rev. Proc. 2003-59, 2003-2 C.B. 268; Rev. Proc. 2003-60, 2003-2 C.B. 274. 664(d)(2) and (3) Qualification of trusts as charitable remainder unitrusts Rev. Proc. 2005-52, 2005-2 C.B. 326; Rev. Proc. 2005-53, 2005-2 C.B. 339; Rev. Proc. 2005-54, 2005-2 C.B. 353; Rev. Proc. 2005-55, 2005-2 C.B. 367; Rev. Proc. 2005-56, 2005-2 C.B. 383; Rev. Proc. 2005-57, 2005-2 C.B. 392; Rev. Proc. 2005-58, 2005-2 C.B. 402; Rev. Proc. 2005-59, 2005-2 C.B. 412. January 3, 2023 108 Bulletin No. 2023–1 832 Insurance company premium acquisition expenses Rev. Proc. 2002-46, 2002-2 C.B. 105. 856(c) Certain loans treated as real estate assets Rev. Proc. 2003-65, 2003-2 C.B. 336. 1031(a) Qualification as a qualified exchange accommodation arrangement Rev. Proc. 2000-37, 2000-2 C.B. 308, as modified by Rev. Proc. 2004-51, 2004-2 C.B. 294. 1031 Safe harbor with respect to exchanges of residential real property Rev. Proc. 2008-16, 2008-1 C.B. 547. 1031 Safe harbor for reporting gain or loss on failed exchanges Rev. Proc. 2010-14, 2010-12 I.R.B. 456. 1272(a)(6) Proportional method of accounting for original issue discount on pools of credit card receivables Rev. Proc. 2013-26, 2013-22 I.R.B. 1160. 1286 Determination of reasonable compensation under mort- gage servicing contracts Rev. Proc. 91-50, 1991-2 C.B. 778. 1362(f) Automatic inadvertent termination relief to certain corporations Rev. Proc. 2013-30, 2013-36 I.R.B. 173. 2056A Qualified Domestic Trust Rev. Proc. 96-54, 1996-2 C.B. 386. 2702(a)(3)(A) and 25.2702- 5(c) Qualified Personal Residence Trust Rev. Proc. 2003-42, 2003-1 C.B. 993. 4051(a)(2) Imposition of tax on heavy trucks and trailers sold at retail Rev. Proc. 2005-19, 2005-1 C.B. 832. 1.7704-2(d) New business activity of existing partnership is closely related to pre-existing busi- ness Rev. Proc. 92-101, 1992-2 C.B. 579. SUBJECT MATTERSREVENUE PROCEDURE Certain rent-to-own contracts treated as leases Rev. Proc. 95-38, 1995-2 C.B. 397. Bulletin No. 2023–1 109 January 3, 2023 Automatic change in accounting period revenue procedures .03 For requests for an automatic change in accounting period, refer to the following automatic change revenue procedures. Rev. Proc. 2006-45, 2006-2 C.B. 851, as clarified and modified by Rev. Proc. 2007-64, 2007-2 C.B. 818 (certain corporations); Rev. Proc. 2006-46, 2006-2 C.B. 859 (certain partnerships, sub- chapter S corporations, personal service corporations, and trusts); and Rev. Proc. 2003-62, 2003-2 C.B. 299 (individuals seeking a calendar year). The Commissioner’s consent to an otherwise qualifying automatic change in accounting period is granted only if the taxpayer timely complies with the applicable automatic change revenue procedure. January 3, 2023 110 Bulletin No. 2023–1 APPENDIX G MEMORANDUM OF UNDERSTANDING ACKNOWLEDGING RISK WITH EMAIL I acknowledge that there are risks associated with email, such as the possibility that sensitive taxpayer information could be inter- cepted and viewed by unauthorized persons. I understand the importance of securing email using appropriate encryption, particularly when transmitting sensitive or confidential tax-related information. I understand that encryption programs only encrypt the email attachment and not the subject line or the body of the email itself, and that confidential information should not be included in the subject line, the body of the email itself, or the file name of the attachment. By signing this agreement, I understand that sensitive or confidential information should be sent only by encrypted email attachments in communicating with the IRS. Even with encryption it is possible electronic communications could be intercepted. I acknowledge that the United States Govern- ment does not guarantee the security of data transmitted electronically by email and accepts no liability, regardless of fault, for any loss or damage sustained without negligence of United States Government employees. (Name of Taxpayer) (Title of Individual Signing Agreement) SIGNATURE: _______________________________ DATE: _______________________________ Bulletin No. 2023–1 111 January 3, 2023 APPENDIX H MEMORANDUMS OF UNDERSTANDING AGREEING TO USE ENCRYPTED EMAIL ATTACHMENTS Agreement to use encrypted email attachments (compressed Zip format) .01 For requesters choosing to use encrypted email attachments in com- pressed Zip format, submit the following MOU: Agreement to Use Encrypted Email Attachments (Compressed Zip format) Generally, the Office of Chief Counsel, Internal Revenue Service (Chief Counsel) communicates with taxpayers or their represen- tatives by sending documents through the mail or via facsimile, or by telephone. In many cases communication by email is more convenient for both the taxpayer and Chief Counsel. There are risks associated with email, such as the possibility sensitive taxpayer information could be intercepted. If an email is intercepted, any personal information in the email could be viewed by unauthorized persons. It is important to secure email using appropriate encryption, particularly when transmitting sensitive or confidential tax-re- lated information. This agreement is intended to enhance the process of securely exchanging taxpayer data and other tax-related information and increase efficiency of interaction between Chief Counsel and taxpayers or their representatives. 1. Communications In order to communicate in a formal, efficient manner for tax issues, written communication is essential. Email is one form of written communication; however, in order to protect sensitive information, additional safeguards are necessary for email communications which are not generally required for paper documents. Chief Counsel and the taxpayer, by this agreement, consent to written com- munications being transmitted via encrypted email attachments. In order to limit access to this information, Chief Counsel and the taxpayer agree to designate participants and provide the list of participants in an addendum to this agreement. Only individuals des- ignated as participants by Chief Counsel and the taxpayer on that list will be included in these communications. The taxpayer will be responsible for providing an updated list when there are changes to their designated participants. 2. Encrypted Email Attachments Chief Counsel uses SecureZIP®, a commercial program, to compress and encrypt email attachments that contain sensitive informa- tion. The recipient of encrypted email attachments created using this utility may decrypt and view them by entering a password. The recipient must first install a compatible “zip” software utility. In addition to SecureZIP®, compatible utilities include PKZIP®, and ZIP Reader® by PKWARE®, which is a free Windows utility that enables users to process compressed and/or AES passphrase-en- crypted files created by SecureZIP®, PKZIP® and other products that support these capabilities. SecureZIP and compatible utilities only encrypt the email attachment and not the subject line nor the body of the email itself. To prevent interception and viewing of sensitive or other confidential tax-related information by unauthorized persons, such information must not be included in the email body or subject line. 3. Security Both parties agree to work together to ensure the joint security of the information contained in the encrypted email attachment. Pur- suant to this MOU, Chief Counsel certifies that its system used to transmit, store, or process data is designed, managed, and operated in a secure manner in compliance with relevant laws, regulations, and policies. The taxpayer should also undertake steps to ensure proper security protections are employed to transmit, receive, and store this information. By signing this agreement, the taxpayer understands that sensitive or confidential information should be sent only by encrypted email attachment in communicating with the IRS. Even with encryption it is possible electronic communications could be intercepted. By signing this agreement, the taxpayer acknowledges that the United States Government does not guarantee the security of data transmitted electronically by email and ac- cepts no liability, regardless of fault, for any loss or damage sustained without negligence of United States Government employees. 4. Costs Both parties agree to bear all of their own costs on a nonreimbursable basis in complying with this agreement. 5. Timeline This agreement is effective upon the signatures of both parties and will remain in effect for the duration of the matter in Chief Coun- sel, including, but not limited to such time as the matter is on appeal or pending before other United States Government agencies such as the Department of the Treasury or Department of Justice. As a new participant is added to the MOU, they are added to the January 3, 2023 112 Bulletin No. 2023–1 addendum and both the MOU and the addendum remain part of the case or administrative file. If either the taxpayer or Chief Counsel wishes to terminate this agreement before it expires, it may be done upon thirty (30) days’ advance notice. In the event of a security incident, Chief Counsel may immediately terminate the agreement. 6 Additional Terms Nothing in this agreement shall be construed as a waiver of any sovereign immunity of the United States Government. This agreement is not intended to contravene in any way, the precedence or applicability of Federal law and shall be governed by and construed under Federal law of the United States of America. (Name of Taxpayer) (Title of Individual Signing Agreement) SIGNATURE: _______________________________ DATE: _______________________________ Office of Chief Counsel, Internal Revenue Service, United States of America (Name of Counsel Employee) (Title of Counsel Employee Signing Agreement) SIGNATURE: _______________________________ DATE: _______________________________ Bulletin No. 2023–1 113 January 3, 2023 Addendum: Individuals and Email Addresses Authorized Pursuant to this Memorandum of Understanding Authorized Person NameAuthorized Email AddressPhone Number January 3, 2023 114 Bulletin No. 2023–1 Agreement to use encrypted email attachments (Adobe Acrobat Pro password encryption) .02 For requesters choosing to use encrypted email attachments with Ado- be Acrobat Pro password encryption, submit the following MOU: Agreement to Use Encrypted Email Attachments (Adobe Acrobat Pro Password Encryption) Generally, the Office of Chief Counsel, Internal Revenue Service (Chief Counsel) communicates with taxpayers or their represen- tatives by sending documents through the mail or via facsimile, or by telephone. In many cases communication by email is more convenient for both the taxpayer and Chief Counsel. There are risks associated with email, such as the possibility sensitive taxpayer information could be intercepted. If an email is intercepted, any personal information in the email could be viewed by unauthorized persons. It is important to secure email using appropriate encryption, particularly when transmitting sensitive or confidential tax-re- lated information. This agreement is intended to enhance the process of securely exchanging taxpayer data and other tax-related information and increase efficiency of interaction between Chief Counsel and taxpayers or their representatives. 1. Communications In order to communicate in a formal, efficient manner for tax issues, written communication is essential. Email is one form of written communication; however, in order to protect sensitive information, additional safeguards are necessary for email communications which are not generally required for paper documents. Chief Counsel and the taxpayer, by this agreement, consent to written com- munications being transmitted via encrypted email attachments. In order to limit access to this information, Chief Counsel and the taxpayer agree to designate participants and provide the list of participants in an addendum to this agreement. Only individuals des- ignated as participants by Chief Counsel and the taxpayer on that list will be included in these communications. The taxpayer will be responsible for providing an updated list when there are changes to their designated participants. 2. Encrypted Email Attachments Chief Counsel uses Adobe Acrobat Pro®, a commercial program, to compress and encrypt email attachments in Adobe Portable Document Format (.pdf) that contain sensitive information. The recipient of encrypted email attachments created using this utility may decrypt and view them by entering a password. The recipient must first install a compatible .pdf software reader with password decryption capability. In addition to Adobe Acrobat Pro®, the Adobe Acrobat DC Reader® is a free Windows utility that enables users to decrypt and open AES passphrase-encrypted files created by Adobe Acrobat Pro. Other compatible .pdf decryption utilities may exist. Acrobat Pro® only encrypts the email attachment and not the subject line nor the body of the email itself. To prevent interception and viewing of sensitive or other confidential tax-related information by unauthorized persons, such information must not be included in the email body or subject line. Further information about how to encrypt email attachments with Adobe Acrobat products may be found on Adobe’s web site or at this link: https://home.treasury.gov/how-to-encryptpassword-protect-microsoft-office-and-adobe-acrobat-pdf-documents. 3. Security Both parties agree to work together to ensure the joint security of the information contained in the encrypted email attachment. Pursu- ant to this MOU, Chief Counsel certifies that its system used to transmit, store, or process data is designed, managed, and operated in a secure manner in compliance with relevant laws, regulations, and policies. The taxpayer should also undertake steps to ensure proper security protections are employed to transmit, receive, and store this information. By signing this agreement, the taxpayer under- stands that sensitive or confidential information should be sent only by encrypted email attachment in communicating with the IRS. Even with encryption it is possible electronic communications could be intercepted. By signing this agreement, the taxpayer acknowl- edges that the United States Government does not guarantee the security of data transmitted electronically by email and accepts no liability, regardless of fault, for any loss or damage sustained without negligence of United States Government employees. 4. Costs Both parties agree to bear all of their own costs on a nonreimbursable basis in complying with this agreement. Bulletin No. 2023–1 115 January 3, 2023 5. Timeline This agreement is effective upon the signatures of both parties and will remain in effect for the duration of the matter in Chief Coun- sel, including, but not limited to such time as the matter is on appeal or pending before other United States Government agencies such as the Department of the Treasury or Department of Justice. As a new participant is added to the MOU, they are added to the addendum and both the MOU and the addendum remain part of the case or administrative file. If either the taxpayer or Chief Counsel wishes to terminate this agreement before it expires, it may be done upon thirty (30) days’ advance notice. In the event of a security incident, Chief Counsel may immediately terminate the agreement. 6 Additional Terms Nothing in this agreement shall be construed as a waiver of any sovereign immunity of the United States Government. This agreement is not intended to contravene in any way, the precedence or applicability of Federal law and shall be governed by and construed under Federal law of the United States of America. (Name of Taxpayer) (Title of Individual Signing Agreement) SIGNATURE: _______________________________ DATE: _______________________________ Office of Chief Counsel, Internal Revenue Service, United States of America (Name of Counsel Employee) (Title of Counsel Employee Signing Agreement) SIGNATURE: _______________________________ DATE: _______________________________ January 3, 2023 116 Bulletin No. 2023–1 Addendum: Individuals and Email Addresses Authorized Pursuant to this Memorandum of Understanding Authorized Person NameAuthorized Email AddressPhone Number Bulletin No. 2023–1 117 January 3, 2023 Agreement to use encrypted email attachments (Microsoft Office 2016/365 password encryp- tion) .03 For requesters choosing to use encrypted email attachments with Mi- crosoft Office 2016/365 password encryption, submit the following MOU: Agreement to Use Encrypted Email Attachments (Microsoft Office 2016/365 Password Encryption) Generally, the Office of Chief Counsel, Internal Revenue Service (Chief Counsel) communicates with taxpayers or their represen- tatives by sending documents through the mail or via facsimile, or by telephone. In many cases communication by email is more convenient for both the taxpayer and Chief Counsel. There are risks associated with email, such as the possibility sensitive taxpayer information could be intercepted. If an email is intercepted, any personal information in the email could be viewed by unauthorized persons. It is important to secure email using appropriate encryption, particularly when transmitting sensitive or confidential tax-re- lated information. This agreement is intended to enhance the process of securely exchanging taxpayer data and other tax-related information and increase efficiency of interaction between Chief Counsel and taxpayers or their representatives. 1. Communications In order to communicate in a formal, efficient manner for tax issues, written communication is essential. Email is one form of written communication; however, in order to protect sensitive information, additional safeguards are necessary for email communications which are not generally required for paper documents. Chief Counsel and the taxpayer, by this agreement, consent to written com- munications being transmitted via encrypted email attachments. In order to limit access to this information, Chief Counsel and the taxpayer agree to designate participants and provide the list of participants in an addendum to this agreement. Only individuals des- ignated as participants by Chief Counsel and the taxpayer on that list will be included in these communications. The taxpayer will be responsible for providing an updated list when there are changes to their designated participants. 2. Encrypted Email Attachments Chief Counsel uses Microsoft Office 365®, a commercial program, to compress and encrypt email attachments in Microsoft Office formats, including Word, Excel or PowerPoint, that contain sensitive information. The recipient of encrypted email attachments cre- ated using this program may decrypt and view them by entering a password. The recipient should use Microsoft 2016® or Microsoft Office 365® to decrypt and open encrypted Office files sent by Chief Counsel as email attachments. Older versions of Microsoft Office may not successfully decrypt these attachments. Microsoft Office 365 only encrypts the email attachment and not the subject line nor the body of the email itself. To prevent inter- ception and viewing of sensitive or other confidential tax-related information by unauthorized persons, such information must not be included in the email body or subject line. Further information about how to encrypt email attachments with Microsoft Office products may be found on Microsoft’s web site or at this link: https://home.treasury.gov/how-to-encryptpassword-protect-microsoft-office-and-adobe-acrobat-pdf-documents. 3. Security Both parties agree to work together to ensure the joint security of the information contained in the encrypted email attachment. Pursu- ant to this MOU, Chief Counsel certifies that its system used to transmit, store, or process data is designed, managed, and operated in a secure manner in compliance with relevant laws, regulations, and policies. The taxpayer should also undertake steps to ensure proper security protections are employed to transmit, receive, and store this information. By signing this agreement, the taxpayer under- stands that sensitive or confidential information should be sent only by encrypted email attachment in communicating with the IRS. Even with encryption it is possible electronic communications could be intercepted. By signing this agreement, the taxpayer acknowl- edges that the United States Government does not guarantee the security of data transmitted electronically by email and accepts no liability, regardless of fault, for any loss or damage sustained without negligence of United States Government employees. 4. Costs Both parties agree to bear all of their own costs on a nonreimbursable basis in complying with this agreement. January 3, 2023 118 Bulletin No. 2023–1 5. Timeline This agreement is effective upon the signatures of both parties and will remain in effect for the duration of the matter in Chief Coun- sel, including, but not limited to such time as the matter is on appeal or pending before other United States Government agencies such as the Department of the Treasury or Department of Justice. As a new participant is added to the MOU, they are added to the addendum and both the MOU and the addendum remain part of the case or administrative file. If either the taxpayer or Chief Counsel wishes to terminate this agreement before it expires, it may be done upon thirty (30) days’ advance notice. In the event of a security incident, Chief Counsel may immediately terminate the agreement. 6 Additional Terms Nothing in this agreement shall be construed as a waiver of any sovereign immunity of the United States Government. This agreement is not intended to contravene in any way, the precedence or applicability of Federal law and shall be governed by and construed under Federal law of the United States of America. (Name of Taxpayer) (Title of Individual Signing Agreement) SIGNATURE: _______________________________ DATE: _______________________________ Office of Chief Counsel, Internal Revenue Service, United States of America (Name of Counsel Employee) (Title of Counsel Employee Signing Agreement) SIGNATURE: _______________________________ DATE: _______________________________ Bulletin No. 2023–1 119 January 3, 2023 Addendum: Individuals and Email Addresses Authorized Pursuant to this Memorandum of Understanding Authorized Person NameAuthorized Email AddressPhone Number January 3, 2023 120 Bulletin No. 2023–1 26 CFR 601.105: Examination of returns and claims for refund, credit or abatement; determination of correct tax liability. Rev. Proc. 2023-2 TABLE OF CONTENTS SECTION 1. PURPOSE AND AUTHORITY ................................................................122 .01 Description of purpose ...........................................................................122 .02 Updated annually ...............................................................................122 SECTION 2. DEFINITIONS ..............................................................................122 .01 Operating division ..............................................................................122 .02 Director .......................................................................................122 .03 Appeals officer .................................................................................123 .04 Taxpayer ......................................................................................123 .05 Associate office .................................................................................123 .06 Field office ....................................................................................123 .07 Field counsel ...................................................................................123 SECTION 3. THE NATURE OF TECHNICAL ADVICE ......................................................123 .01 When advice furnished ...........................................................................123 .02 TAM may be requested even if previous TAM on same matter was issued ...................................123 .03 Taxpayer participation ...........................................................................124 .04 Areas of mandatory technical advice on employee plans matters ..........................................124 .05 Basis for requests by Exempt Organizations Rulings & Agreements .......................................124 SECTION 4. TYPES OF ISSUES NOT SUBJECT TO THIS PROCEDURE ......................................124 .01 Alcohol, tobacco, and firearms taxes ................................................................124 .02 Employment status determinations ..................................................................124 .03 Issues under § 301.9100 ..........................................................................124 .04 Frivolous issues ................................................................................124 .05 Issues in a docketed case .........................................................................125 .06 Collection issues ................................................................................125 .07 Request for relief under § 7805(b) relating to matters handled by TE/GE ...................................125 SECTION 5. INITIATING A REQUEST FOR TECHNICAL ADVICE ..........................................125 .01 Initiating a request for technical advice ..............................................................125 .02 Taxpayer may request referral for technical advice .....................................................125 .03 Appeal of field office denial of TAM referral request ...................................................125 .04 The decision of the Director, the LB&I Territory Manager, or the Tax Exempt Bonds Program Manager may be reviewed but not appealed ..................................................................126 SECTION 6. PRE-SUBMISSION CONFERENCES ..........................................................126 .01 Purpose .......................................................................................126 .02 Pre-submission conferences are mandatory ...........................................................126 .03 Actions before a pre-submission conference ..........................................................126 .04 Initiating a pre-submission conference ...............................................................127 .05 Manner of transmitting pre-submission materials ......................................................127 .06 Scheduling the pre-submission conference ...........................................................127 .07 Pre-submission conferences may be conducted in person ................................................127 .08 Pre-submission conference may not be taped .........................................................128 .09 Discussion of substantive issues is not binding on the Service ............................................128 .10 New issues may be raised at pre-submission conference .................................................128 .11 Power of attorney ...............................................................................128 Bulletin No. 2023–1 121 January 3, 2023 SECTION 7. SUBMITTING THE REQUEST FOR TECHNICAL ADVICE ......................................128 .01 Memorandum of issues, facts, law, and arguments .....................................................128 .02 Transaction involving multiple taxpayers ............................................................129 .03 Foreign laws and documents: submission of relevant foreign laws and documents in the official language and in English ..........................................................................129 .04 Statement regarding interpretation of relevant income tax or estate tax treaty ................................129 .05 Statement recommending information to be deleted from public inspection ..................................130 .06 Preparation of the memorandum; resolution of disagreements ............................................130 .07 Transmittal Form 4463, Request for Technical Advice ..................................................131 .08 All supporting and additional documents .............................................................132 .09 Number of copies of request to be submitted ..........................................................132 SECTION 8. INITIAL PROCESSING OF THE REQUEST FOR TECHNICAL ADVICE BY THE ASSOCIATE OFFICE ........................................................................132 .01 Assignment and initial review by Associate office attorney ...............................................132 .02 Other forms of guidance ..........................................................................132 .03 Initial acknowledgment and processing ..............................................................133 .04 Deficiencies in request leading to return .............................................................133 .05 Initial discussion ................................................................................133 .06 If additional information requested .................................................................133 .07 Taxpayer request for extension of time to submit additional information ....................................133 .08 Where to send additional information ...............................................................134 .09 Tentative conclusions ............................................................................134 SECTION 9. TAXPAYER CONFERENCES .................................................................134 .01 Notification of conference ........................................................................134 .02 Scheduling conference ...........................................................................134 .03 Taxpayer may request extensions ...................................................................134 .04 One conference of right ..........................................................................135 .05 Additional conferences may be offered ..............................................................135 .06 Additional information submitted after the conference ..................................................135 .07 Normally conducted in person .....................................................................135 .08 Service makes only tentative recommendations ........................................................135 .09 Conference may not be taped ......................................................................135 SECTION 10. PREPARATION OF THE TECHNICAL ADVICE ...............................................136 .01 Reply consists of two parts ........................................................................136 .02 Status of a request ...............................................................................136 .03 Opportunity for field counsel review ................................................................136 .04 Copy of preliminary TAM to field office and field counsel ...............................................136 .05 Routing of reply ................................................................................136 .06 Copy of final TAM to field counsel and Division Counsel ...............................................136 .07 Reconsideration ................................................................................136 .08 Discussing contents with the taxpayer ...............................................................137 .09 Section 6110 ...................................................................................137 .10 TAM takes effect when taxpayer receives a copy ......................................................137 .11 Taxpayer may protest deletions not made ............................................................137 .12 Public inspection in civil fraud or criminal investigation cases ............................................137 SECTION 11. WITHDRAWAL OF REQUESTS FOR TECHNICAL ADVICE ....................................138 .01 Taxpayer notified ...............................................................................138 .02 Acknowledgment of withdrawal ...................................................................138 .03 Associate office may decide not to provide a TAM .....................................................138 .04 Associate office may provide views .................................................................138 SECTION 12. USE OF THE TECHNICAL ADVICE .........................................................138 .01 Service generally applies advice in processing taxpayer’s case ............................................138 January 3, 2023 122 Bulletin No. 2023–1 SECTION 13. RETROACTIVITY AND RELIANCE .........................................................138 .01 Usually applies retroactively ........................................................................139 .02 Revocation or modification of an earlier letter ruling or TAM ..............................................139 .03 Continuing action or series of actions .................................................................139 .04 Other taxpayers ..................................................................................139 SECTION 14. HOW MAY RETROACTIVE EFFECT BE LIMITED? ...........................................139 .01 Request for relief under § 7805(b) ...................................................................139 .02 Form of request for relief—in general ................................................................140 .03 Form of request for relief—continuing transaction before examination of return ...............................140 .04 Taxpayer’s right to a conference .....................................................................140 .05 Reconsideration of request for relief under § 7805(b) ....................................................140 SECTION 15. SIGNIFICANT CHANGES MADE TO REV. PROC. 2022-2 .......................................140 SECTION 16. EFFECT ON OTHER DOCUMENTS .........................................................140 SECTION 17. EFFECTIVE DATE .........................................................................140 DRAFTING INFORMATION .............................................................................140 INDEX ................................................................................................142 SECTION 1. PURPOSE AND AUTHORITY Description of purpose .01 Technical advice. This revenue procedure explains when and how an Associate office provides technical advice, conveyed in a technical advice memorandum (TAM). It also explains the rights that a taxpayer has when a field office requests a TAM regarding a tax matter. Rev. Proc. 2022-2 is superseded. .02 This revenue procedure is updated annually as the second revenue procedure of the year, but it may be modified, amplified, or clarified during the year. Updated annually SECTION 2. DEFINITIONS Operating division Director .01 The term “operating division” means (1) the Large Business & International Division (LB&I); (2) the Small Business/Self-Employed Division (SB/SE); (3) the Wage and Investment Division (W&I); and (4) the Tax Exempt and Government Entities Division (TE/GE). .02 The term “Director” means (1) the Practice Area Director or the Director, Field Operations (LB&I) for the taxpayer’s practice area; (2) an Area Director, SB/SE; (3) the Director, Return Integrity & Compliance Services (W&I); (4) the Director, International Compliance, Strategy and Policy; (5) the Director, Employee Plans Examinations; (6) the Director, Employee Plans Rulings & Agreements; (7) the Director, Exempt Organizations Examinations; (8) the Director, Exempt Organizations Rulings & Agreements; (9) the Director, Government Entities; (10) the Appeals Area Director; (11) the Appeals Director, Technical Guidance; (12) the Appeals Director, International Operations; or (13) any official to whom the authority normally exercised by a Director has properly been delegated. Bulletin No. 2023–1 123 January 3, 2023 Appeals .03 The terms “Appeals” and “Appeals office” refer to the Internal Revenue Service Independent Office of Appeals. .04 The term “Appeals officer” means the Appeals officer assigned to the taxpayer’s case and can include an Appeals Team Case Leader or settlement officer. Appeals officer Taxpayer .05 The term “taxpayer” means any person subject to any provision of the Internal Revenue Code, including an issuer of obligations the interest on which is excluded from gross income under § 103, and issuers of other bonds that provide a tax subsidy. Associate office .06 The term “Associate office” means (1) the Office of Associate Chief Counsel (Corporate); (2) the Office of Associate Chief Counsel (Financial Institutions and Products); (3) the Office of Associate Chief Counsel (Income Tax and Accounting); (4) the Office of Associate Chief Counsel (International); (5) the Office of Associate Chief Counsel (Passthroughs and Special Industries); (6) the Office of Associate Chief Counsel (Procedure and Administration); or (7) the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). Field office .07 The term “field office” means personnel in any examination or Appeals office. For qualified retirement plan and exempt organizations matters, the term “field office” also means personnel in any Rulings & Agreements office. Field counsel .08 The term “field counsel” means any attorney assigned to the Division Counsel for an operating division who is not a member of Division Counsel Headquarters. SECTION 3. THE NA TURE OF TECHNICAL ADVICE When advice furnished .01 Technical advice is advice furnished by an Associate office in a memorandum that responds to any request, submitted under this revenue procedure, for assistance on any technical or procedural question that develops during any proceeding before the Internal Revenue Service (Service). The field office may request a TAM when the application of the law to the facts involved is unclear. The question must be on the interpretation and proper application of any legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements to a specific set of facts that concerns the treatment of an item in a tax period under examination or in Appeals. A TAM may not be requested for prospective or hypothetical transactions (except for certain TAMs in connection with a taxpayer’s request for a determination letter on a matter within the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division, pursuant to Rev. Proc. 2023-4 or 2023-5). Proceedings before the Service include: (1) the examination of a taxpayer’s return; (2) the consideration of a taxpayer’s claim for credit or refund; (3) any matter under examination or in Appeals pertaining to tax-exempt bonds, tax credit bonds, or mortgage credit certificates; and (4) any other matter involving a specific taxpayer under the jurisdiction of a Director. Technical advice does not include any oral legal advice or any written legal advice furnished to the field office that is not submitted and processed under this revenue procedure. TAM may be requested even if pr evious TAM on same matter was issued .02 The field office may request a TAM on an issue in any tax period, even if a TAM was requested and furnished for the same or similar issue for another tax period. The field office may also request a TAM on an issue even if Appeals disposed of the same or similar issue for another tax period of the same taxpayer. January 3, 2023 124 Bulletin No. 2023–1 Taxpayer participation .03 Taxpayers will be afforded an opportunity to participate in the technical advice process. Taxpayer participation is preferred but not required in order to process a TAM. A taxpayer’s failure to participate in stages identified as “material,” however, will constitute waiver of the taxpayer’s right to the taxpayer conference described in section 9. Under no circumstances will a taxpayer be treated as having waived its right to see the issued TAM or having waived its rights regarding disclosure and deletions described in section 10. Areas of mandatory technical advice on employee plans matters .04 Regarding qualified retirement plan matters, a request for a TAM is required in cases concerning plans for which the Service is proposing to issue a revocation letter because of certain fiduciary actions that violate the exclusive benefit rule of § 401(a) of the Code and are subject to Part 4 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 1974-3 C.B. 1, 43 as amended (ERISA). Basis for requests by Exempt Organizations Rulings & Agreements .05 The circumstances in which Exempt Organizations Determinations should seek technical advice in the course of processing applications for tax exemption are described in Rev. Proc. 2023- 5, this Bulletin, section 3.03. Technical advice may also be requested by Exempt Organizations Determinations in connection with requests for determination letters where no pending application for tax exemption is involved. A request for a TAM is not required if the Director, Exempt Organizations Examinations proposes to revoke or modify a letter recognizing tax-exempt status issued by the Service. SECTION 4. TYPES OF ISSUES NOT SUBJECT TO THIS PROCEDURE Alcohol, tobacco, and firearms taxes .01 The procedures for obtaining technical advice that apply to Federal alcohol, tobacco, and firearms taxes under subtitle E of the Code are under the jurisdiction of the Alcohol and Tobacco Tax and Trade Bureau of the Department of the Treasury. Employment status determinations Issues under § 301.9100 .02 Employment status determination letters issued pursuant to section 12.04 of Rev. Proc. 2023-1, of this Bulletin, are not subject to technical advice procedures. .03 A request for an extension of time for making an election or other application for relief under § 301.9100-3 of the Procedure and Administration Regulations is not submitted as a request for technical advice. Instead, the request must be submitted as a request for a letter ruling, even if submitted after the examination of the taxpayer’s return has begun or after the issues in the return are being considered in Appeals or a federal court. Therefore, a request under § 301.9100 should be submitted under Rev. Proc. 2023-1, of this Bulletin, and the payment of the applicable user fee is determined under Appendix A of Rev. Proc. 2023-1. However, a request under § 301.9100 related to recharacterization of a Roth IRA should be submitted under Rev. Proc. 2023-4 of this Bulletin. Requests for relief pertaining to exemption application matters involving §§ 505(c) and 508 are considered in the determination letter process under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division. See Revenue Procedure 2023-5, this Bulletin. Frivolous issues .04 Associate offices will not issue a TAM on frivolous issues. The field office will deny a taxpayer’s request that it consider requesting technical advice if the taxpayer’s request involves frivolous issues. For purposes of this revenue procedure, a “frivolous issue” is one without basis in fact or law or one that asserts a position that courts have held frivolous or groundless. Examples of frivolous or groundless issues may be found in Service publications and other guidance (including, but not limited to, section 6.10 of Rev. Proc. 2023-1, Notice 2010-33, and Exhibit 25.25.10-1, Frivolous Arguments). Bulletin No. 2023–1 125 January 3, 2023 Issues in a docketed case .05 Associate offices will not issue technical advice on an issue if the same issue of the same taxpayer (or of a related taxpayer within the meaning of § 267 or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504) is in a docketed case for any taxable year. If a case is docketed for an estate tax issue of a taxpayer while a request for technical advice on the same issue of the same taxpayer is pending, the Associate office may issue the TAM only if the appropriate Appeals officer and field counsel agree, by memorandum, to the issuance of the TAM. Collection issues .06 The Associate Chief Counsel (Procedure and Administration) will not issue technical advice on matters arising under the Internal Revenue Code and related statutes and regulations that involve the collection of taxes (including interest and penalties). With respect to such matters, the Associate Chief Counsel (Procedure and Administration) may issue alternative forms of advice. .07 Requests for relief under § 7805(b) relating to the revocation or modification of determination letters or letter rulings issued by TE/GE are handled in accordance with the procedures in sections 23 and 29 of Rev. Proc. 2023-4, and section 12 of Rev. Proc. 2023-5, this Bulletin. Request for relief under § 7805(b) relating to matters handled by TE/GE SECTION 5. INITIA TING A REQUEST FOR TECHNICAL ADVICE Initiating a request for technical advice .01 Because technical advice is issued to assist field offices, it is the field office that determines whether to request it. In determining whether to request technical advice, the field office should consider whether other forms of guidance, e.g., published guidance, generic advice, or some other form of advice, would be more appropriate. Additionally, before requesting technical advice, the field office must request assistance and a recommendation from field counsel. If the field office disagrees with field counsel’s recommendation, the field office must seek reconciliation with field counsel through their respective supervisors. A field office’s request for technical advice must be approved in writing by a Director. If technical advice is requested from the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) for a case with either an unagreed prohibited transaction, as defined in § 4975(c)(1) and ERISA § 406(a), or a violation of the exclusive benefit rule of § 401(a)(2) or ERISA § 404(a)(1)(A), a Form 6212-B must be submitted to the Department of Labor prior to submitting the request for technical advice. Taxpayer may request referral for technical advice .02 While a case is under the jurisdiction of a Director, a taxpayer may request that the field office refer an issue to the Associate office for technical advice. The taxpayer’s request may be oral or written and should be directed to the field office. If the field office decides that a taxpayer’s request for referral of an issue to the Associate office for a TAM is unwarranted, the field office will notify the taxpayer. A taxpayer’s request for referral of an issue for technical advice will not be denied merely because the Associate office has already provided legal advice other than a TAM to the field office on the matter. Appeal of field office denial of TAM referral request .03 The taxpayer may appeal the field office’s denial of the taxpayer’s request for referral by submitting to the field office, within 30 calendar days after notification that the request was denied, a written statement of the reasons why the matter should be referred to the Associate office. The statement should include a description of all pertinent facts (including any facts in dispute); a statement of the issue that the taxpayer would like to have addressed; a discussion of any relevant legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements; and an explanation of the taxpayer’s position and the need for technical advice. Any extensions of the 30-day period must be requested in writing and must be approved by the Director or the Tax Exempt Bonds Program Manager. Decisions on any extensions by the Director, the LB&I Territory Manager, or in the case of Tax Exempt Bonds, the Program Manager, are final and may not be appealed. January 3, 2023 126 Bulletin No. 2023–1 Upon receipt, the field office will refer the taxpayer’s written statement, along with the field office’s statement of why the issue should not be referred to the Associate office for technical advice, to the Director or in the case of Tax Exempt Bonds, the Program Manager, for decision. The Director or in the case of Tax Exempt Bonds, the Program Manager, will determine whether the issue should be referred for technical advice on the basis of the statements of the field office and the taxpayer. No conference will be held with the taxpayer or the taxpayer’s representative. If the Director, or in the case of Tax Exempt Bonds, the Program Manager, determines that a TAM is not warranted, the taxpayer will be informed in writing of the proposed denial of the request and the reasons for the denial (unless doing so would prejudice the Government’s interests). The decision of the Director or the Tax Exempt Bonds Program Manager may be reviewed but not appealed .04 The taxpayer may not appeal the decision of the Director, or in the case of Tax Exempt Bonds, the Program Manager not to request a TAM. If the taxpayer does not agree with the proposed denial, all data on the issue for which a TAM has been sought, including the taxpayer’s written request and statements, will be submitted for review to the Director, LB&I; the Director, Examination, SB/SE; the Director, Specialty Tax, SB/SE; the Director, Return Integrity & Compliance Services, W&I; the Director, Government Entities; the Appeals Director, Policy Planning Quality & Analysis; or the Commissioner, Tax Exempt and Government Entities Division (who will review the proposed denial through the Director, Employee Plans; the Director, Exempt Organizations; or, if appropriate, the Appeals Director, Policy Planning Quality & Analysis). Review of the proposed denial will be based solely on the written record. No conference will be held with the taxpayer or the taxpayer’s representative. The person responsible for review may consult with the Associate office, if appropriate, and will notify the field office whether the proposed denial of the taxpayer’s request is approved or denied within 45 days of receiving all information. The field office will then notify the taxpayer. While the matter is under review, the field office will suspend any final decision on the issue (except when the delay would prejudice the Government’s interests). If the request for technical advice has been denied because the issue is frivolous as described in section 4.04 of this revenue procedure, this review process is not available. SECTION 6. PRE-SUBMISSION CONFERENCES Purpose .01 A pre-submission conference helps the field office, field counsel, the taxpayer, and the Associate office agree on the appropriate scope of the request for technical advice and the factual information and documents that must be included in the request. A pre-submission conference is not an alternative procedure for addressing the merits of the substantive positions advanced by the field office or by the taxpayer. During the pre-submission conference, the parties should discuss the framing of the issues and the background information and documents that should be included in the formal submission of the request for technical advice. Pre-submission conferences are mandatory .02 Pre-submission conferences are mandatory because they promote expeditious processing of requests for technical advice. If a request for technical advice is submitted without first holding a pre-submission conference, the Associate office will return the request for advice. Pre-submission conferences include the taxpayer and representatives from the field office, field counsel, and the Associate office. Requests for technical advice can proceed, however, even if a taxpayer declines to participate in a pre-submission conference. Actions before a pre- submission conference .03 Before requesting a pre-submission conference, the field office and the taxpayer must exchange proposed statements of the pertinent facts and issues. The proposed statements should include any facts in dispute, the issues that the parties intend to discuss, any legal analysis and supporting authorities, and any other background information that the parties believe would facilitate the Associate office’s understanding of the issues to be discussed during the conference. Prior to the scheduled pre-submission conference, the field office and the taxpayer must submit to the Associate office their respective statements of pertinent facts and issues. The legal analysis Bulletin No. 2023–1 127 January 3, 2023 provided in the parties’ statements should be sufficient to enable the Associate office to be reasonably informed about the subject matter. Failure of the taxpayer to provide a statement of pertinent issues and facts shall not be allowed to unduly delay the scheduling of the pre- submission conference. If it is not provided within a reasonable period of time, the conference may be scheduled without the taxpayer’s statements. The field office or the taxpayer must ensure that the Associate office receives a copy of any required power of attorney. Form 2848, Power of Attorney and Declaration of Representative, should be used. Pre-submission materials include the field office and taxpayer’s statements (discussed above) and any required power of attorney for the taxpayer. The assigned Associate office must receive the pre-submission materials at least 10 business days before the conference is to be held. Initiating a pre-submission conference .04 A request for a pre-submission conference must be submitted in writing by the field office, with the assistance of field counsel. The request should identify the Associate office expected to have jurisdiction over the request for a TAM and should include a brief explanation of the primary issue so that an assignment within the appropriate Associate office can be made. If the request is submitted by Appeals, field counsel assignments will be subject to the ex parte rules set forth in section 1001(a)(4) of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, and Rev. Proc. 2012-18, 2012-10 I.R.B. 455. If the request involves an issue under the office of the Director of the Office of Promoter Investigations, the field office and field counsel should coordinate with SB/SE Division Counsel headquarters. If the request involves an issue under the Office of Tax Shelter Analysis (OTSA), LB&I, then the field office and field counsel should coordinate with LB&I Division Counsel headquarters. If the request is from Appeals and involves a coordinated issue or emerging issue under Appeals Technical Guidance or International Operations or Appeals Coordinated Issue (ACI) Program, the Appeals officer must coordinate with the Appeals Technical Guidance or International Operations Technical Specialist. Manner of transmitting pre-submission materials .05 The request for a pre-submission conference and pre-submission materials should be electronically transmitted by field counsel to the Technical Services Support Branch (TSS4510). TSS4510 will ensure delivery of the pre-submission materials to the appropriate Associate office. The TSS4510 email box cannot accept encrypted mail. If documents are not electronically available, or if documents cannot reasonably be transmitted electronically, the request for a pre-submission conference and pre-submission materials may be sent by fax to TSS4510 at 855-592-8976 or by express mail or private delivery service to the following address to avoid any delays in regular mail: Internal Revenue Service Attn: CC:PA:LPD:TSS, Room 5336 1111 Constitution Avenue, NW Washington, DC 20224 Scheduling the pre-submission conference .06 After the pre-submission materials have been received, the Associate office responsible for conducting the pre-submission conference will contact the taxpayer, the field office, and field counsel to arrange a mutually convenient time for the parties to participate in the conference. The conference generally should be held within 15, but not more than 30, calendar days after the field office is contacted. Pre-submission conferences may be conducted in person .07 Although pre-submission conferences are generally conducted by telephone, the parties may choose to conduct the conference in person. January 3, 2023 128 Bulletin No. 2023–1 Pre-submission conference may not be taped Discussion of substantive issues is not binding on the Service New issues may be raised at pre-submission conference .08 No tape, stenographic, or other verbatim recording of a conference may be made by any party. .09 Any discussion of substantive issues at a pre-submission conference is advisory only, is not binding on the Service in general or on the Office of Chief Counsel in particular, and cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). .10 During the pre-submission conference, the Associate office may raise new issues in addition to those submitted by the field office and the taxpayer. Power of attorney .11 Form 2848, Power of Attorney and Declaration of Representative, should be used to provide the representative’s authority (Part I of Form 2848, Power of Attorney) and the representative’s qualification (Part II of Form 2848, Declaration of Representative). The name of the person signing Part I of Form 2848 should be typed or printed on this form. A Form 2848 executed for the purpose of a pre-submission conference should reflect that it is for a “specific use” that is not recorded on the Centralized Authorization File (CAF) and should only be submitted as provided in this revenue procedure (that is, it should not be submitted to the Service by any other method listed in the Instructions for Form 2848). A Form 2848 must be signed by both the taxpayer (or the person signing on the taxpayer’s behalf) and the representative in a manner consistent with section 7.01(13) of Rev. Proc. 2023-1. If the Form 2848 is remotely signed by the taxpayer (or the person signing on the taxpayer’s behalf) using a permissible electronic or digital method, the representative should follow the necessary steps to verify the taxpayer’s identity provided in the Electronic Signatures section of the Instructions for Form 2848, but is not required to provide a separate attestation unless requested by the Service. If the Form 2848 is signed by the taxpayer (or the person signing on the taxpayer’s behalf) using a physical, wet-ink signature, a submission may include a copy or scanned version of the Form 2848 as long as its authenticity is not reasonably disputed. The taxpayer’s authorized representative, as described in section 7.01(14) of Rev. Proc. 2023-1, whether or not enrolled, must comply with Treasury Department Circular No. 230, which provides the rules for practice before the Service. In situations where the Service believes that the taxpayer’s representative is not in compliance with Circular 230, the Service will bring the matter to the attention of the Office of Professional Responsibility. SECTION 7. SUBMITTING THE REQUEST FOR TECHNICAL ADVICE Memorandum of issues, facts, law, and arguments .01 The field office submits the request for technical advice. Every request for technical advice must include a memorandum that describes the facts, issues, applicable law, and arguments supporting the taxpayer’s position on the issues and the field office’s position on the issues. The field office will prepare this statement with the assistance of field counsel. The memorandum must include a statement of all the facts and the issues. If the taxpayer and the field office disagree about ultimate findings of fact or about the relevance of facts, all of the facts should be included with an explanation that highlights the areas of disagreement. The memorandum must include an explanation of the taxpayer’s position, discussing any relevant legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements supporting the taxpayer’s position. The memorandum must also include a similar explanation of the field office’s position. Both the field office and the taxpayer should Bulletin No. 2023–1 129 January 3, 2023 comment on any relevant legal authority contrary to their respective positions. If either party determines that there are no authorities contrary to its position, that statement should be noted in the memorandum. When the field office initiates a request for technical advice, the field office should notify the taxpayer that it is requesting technical advice and provide the taxpayer with a copy of the arguments supporting the field office’s position. The taxpayer has 10 calendar days to state, in writing, any factual disagreement. The field office will make every effort to reach agreement on the facts and specific points at issue. The taxpayer is encouraged to submit a written statement with an explanation of the taxpayer’s position, including a discussion of any relevant legal authority. .02 If the subject matter of the request involves a transaction among multiple taxpayers, the field office may submit a request for a single TAM, but only if each taxpayer agrees to participate in the process, including the furnishing of Forms 8821, Tax Information Authorization, or other written disclosure consent, as appropriate. Transaction involving multiple taxpayers Foreign laws and documents: submission of relevant foreign laws and documents in the official language and in English .03 If applicable, the request for technical advice must include a copy of the relevant parts of all foreign laws, including statutes, regulations, administrative pronouncements, and any other relevant legal authority. The documents submitted must be in the official language of the country involved and must be copied from an official publication of the foreign government or another widely available and generally accepted publication. If English is not the official language of the country involved, the submission must also include a copy of an English language version of the relevant parts of all foreign laws. This translation must be: (i) from an official publication of the foreign government or another widely available, generally accepted publication; or (ii) a certified English translation submitted in accordance with paragraph (2) of this section 7.03. The taxpayer or the field office must identify the title and date of publication, including updates, of any widely available and generally accepted publication used as a source for the relevant parts of the foreign law. The taxpayer and the field office must inform the Associate office of the implications of any authority believed to interpret the foreign law, such as pending legislation, treaties, court decisions, notices, and administrative decisions. (1) If the interpretation of a foreign law or foreign document is a material component of the request for technical advice, the Associate office, at its discretion, may refuse to provide a TAM. The interpretation of a foreign law or foreign document means making a judgment about the import or effect of the foreign law or document that goes beyond its plain meaning. This section applies whether or not the field office and the taxpayer dispute the interpretation of a foreign law or foreign document. (2) If applicable, a request for technical advice must include an accurate and complete certified English translation of the relevant parts of all contracts, wills, deeds, agreements, instruments, trust documents, proposed disclaimers, and other documents pertinent to the request that are in a language other than English. If the taxpayer or the field office chooses to submit certified English translations of foreign laws, those translations must be based on an official publication of the foreign government or another widely available and generally accepted publication. In either case, the translation must be that of a qualified translator and must be attested to by the translator. The attestation must contain: (i) a statement that the translation submitted is a true and accurate translation of the foreign language document or law; (ii) a statement as to the attestant’s qualifications as a translator and as to that attestant’s qualifications and knowledge regarding tax matters or foreign law if the law is not a tax law; and (iii) the attestant’s name and address. Statement regarding interpretation of relevant income tax or estate tax treaty .04 A request for technical advice involving the interpretation of a substantive provision of a relevant income tax or estate tax treaty must include a written statement addressing whether: (1) the tax authority of the treaty jurisdiction has issued a ruling on the same or similar issue for the January 3, 2023 130 Bulletin No. 2023–1 taxpayer, a related taxpayer (within the meaning of § 267 or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504 (related taxpayer)), or any predecessor; (2) the same or similar issue for the taxpayer, a related taxpayer, or any predecessor, is being examined, or has been settled, by the tax authority of the treaty jurisdiction or is otherwise the subject of a closing agreement in that jurisdiction; and (3) the same or similar issue for the taxpayer, a related taxpayer, or any predecessor, is being considered by the competent authority of the treaty jurisdiction. Statement recommending information to be deleted from public inspection .05 Except as provided below, every request for technical advice must separately include a statement of proposed deletions from public inspection (deletion statement). The text of TAMs and background file documents are open to public inspection under § 6110(a). The Service deletes certain information from the text before it is made available to the public in order to protect the privacy of taxpayers. To help the Service make the necessary deletions, the taxpayer must provide a deletion statement indicating the deletions desired. A taxpayer who wants only names, addresses, and identifying numbers deleted should state this in the deletion statement. A taxpayer who wants more information deleted must provide a copy of the TAM request and supporting documents on which the taxpayer has placed brackets around the material to be deleted plus a deletion statement indicating the statutory basis under § 6110(c) for each proposed deletion. The deletion statement is not to be included in the memorandum described in section 7.01 of this revenue procedure. Instead, the deletion statement is to be made in a separate document that is signed and dated by the taxpayer, or the taxpayer’s authorized representative in accordance with the requirements in section 7.01(13) of Rev. Proc. 2023-1. If the deletion statement is not submitted, the taxpayer will be notified and advised by the field office that the deletion statement is required and that failure to provide a deletion statement will be interpreted by the field office, field counsel, and Associate office to mean that the taxpayer only wants names, addresses, and identifying numbers deleted. If the deletion statement is not received within 10 calendar days after the notification, the field office will notify the Associate office that the taxpayer has not provided a deletion statement and will advise the Associate office of any information in addition to names, addresses, and identifying numbers, that should be deleted pursuant to § 6110(c). The taxpayer should follow this same process to propose deletions from any additional information submitted after the initial request for a TAM. An additional deletion statement is not required with each submission of additional information if the taxpayer’s initial deletion statement requests that only names, addresses, and identifying numbers are to be deleted and the taxpayer wants only the same information deleted from the additional information. The above deletion statement requirements do not apply to the extent that the TAM is open to public inspection under § 6104. Section 6104(a) (1)(A) generally provides that if an organization described in § 501(c) or § 501(d) is exempt from taxation under § 501(a) or a political organization is exempt from taxation under § 527, the application for exemption under § 501(a) that the organization filed or the notice of status filed by a political organization pursuant to § 527(i) is open for public inspection as prescribed by regulations. Generally, § 6104(a)(1)(B) provides that: (1) an application filed with respect to the qualification of a pension, profit-sharing, or stock bonus plan under § 401(a) or § 403(a) or an individual retirement arrangement under § 408(a) or § 408(b) will be open to public inspection pursuant to regulations, as will (2) any application filed for an exemption from tax under § 501(a) of an organization forming part of a plan or account described above, (3) any papers submitted in support of an application referred to in (1) or (2) above, and (4) any letter or other document issued by the Internal Revenue Service and dealing with the qualification referred to in (1) or the exemption from tax referred to in (2). Preparation of the memorandum; resolution of disagreements .06 The field office prepares the memorandum described in section 7.01 of this revenue procedure with the assistance of field counsel and sends it to the taxpayer by mail, fax transmission, or electronic facsimile. The taxpayer then will have 10 calendar days from the date of mailing or fax to respond by providing a written statement specifying any disagreement on the facts and issues. This written statement may be submitted by mail, fax, electronic facsimile, or encrypted email attachment by following the procedures described in section 7.04(3) of Rev. Proc. 2023-1. There are more risks associated with email than with electronic facsimile, such as the possibility that sensitive taxpayer information could be intercepted. Accordingly, the Service encourages Bulletin No. 2023–1 131 January 3, 2023 taxpayers to use a secure electronic facsimile service instead of email for electronically transmitting a written statement. The field office representative can provide a fax number to which the statement can be sent. A taxpayer who needs more than 10 calendar days must submit a written request for an extension of time, subject to the approval of the field office. The field office will make a determination on the request for extension as soon as reasonably possible. The request for extension will be considered denied unless the field office informs the taxpayer otherwise. The decision of the field office on whether to approve an extension, and the length of any extension granted, is final and may not be appealed. After the taxpayer’s response is received by the field office, the parties will have 10 calendar days to resolve remaining disagreements. If all disagreements about the statement of facts and issues are resolved, then the field office will prepare a single statement of those agreed facts and issues. If disagreements continue, both the taxpayer’s set of facts and issues and the field’s set of facts and issues will be forwarded to the Associate office. The field office, with the assistance of field counsel, will prepare a memorandum for the Associate office highlighting the material factual differences, and provide a copy to the taxpayer for review. The taxpayer may respond in writing to the memorandum highlighting material factual differences. The field office may revise the memorandum described in section 7.01 of this revenue procedure in response to the taxpayer’s comments. This memorandum highlighting material factual differences will be forwarded with the initial request for technical advice. The taxpayer’s statement of facts and issues must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the relevant facts relating to the request for technical advice, and such facts are true, correct, and complete.” This declaration must be signed in accordance with the requirements in section 7.01(16)(b) of Rev. Proc. 2023-1. The field office must submit this declaration with the initial request for technical advice. If no agreement regarding the facts is reached, the Associate office may rely on the facts presented by the field office. The field office will offer the taxpayer an opportunity to participate in the development of the request for technical advice. If the taxpayer participates in the process, the field office will continue to offer the taxpayer the opportunity to participate. If the taxpayer does not participate in a material stage of the process after being offered an opportunity, the Associate office will nonetheless process the request, and the taxpayer will have waived the right to participate in the development and issuance of the TAM, including the right to the taxpayer conference described in section 9. A taxpayer’s failure to participate in the development of the memorandum described in section 7.01 of this revenue procedure will be considered a failure to participate in a material stage of the TAM process. Under no circumstances will a taxpayer be treated as having waived its right to see the issued TAM or having waived its rights regarding disclosure and deletions described in section 10. Transmittal Form 4463, Request for Technical Advice .07 The field counsel with whom the TAM request was coordinated must use Form 4463, Request for Technical Advice Memorandum, for submitting a request for a TAM through TSS4510 to the Associate office. While the field office is responsible for preparing Form 4463, field counsel must submit the Form 4463 for a TAM request to the TSS Assignments email address. To the January 3, 2023 132 Bulletin No. 2023–1 All supporting and additional documents extent feasible, the accompanying documents should also be submitted to the TSS Assignments email address, followed by hard copies upon the request of the assigned Associate office. .08 Field counsel should send additional or supporting documents that are not available in electronic form by fax to Technical Services Support Branch at 855-592-8976 or by express mail or private delivery service to the following address to avoid any delays in regular mail: Internal Revenue Service Attn: CC:PA:LPD:TSS, Room 5336 1111 Constitution Avenue, NW Washington, DC 20224 Whenever possible, all documents should contain the case number and name of the Associate office attorney assigned to the pre-submission conference for the TAM request. The field office must indicate on the Form 4463 the proper mailing address of the Director to whom the Associate office should mail a copy of its reply to the TAM request under section 10.05 of this revenue procedure. Number of copies of request to be submitted .09 The field office must submit one paper copy of the request for a TAM to the address in section 7.08 of this revenue procedure. If the TAM relates to a W&I or TE/GE taxpayer, the field office must send one paper copy to the Division Counsel of the operating division that has jurisdiction over the taxpayer’s tax return. If the TAM relates to a SB/SE taxpayer, the field office must send an electronic copy of the request to the SB/SE Division Counsel office using the “&SBSE HQ Coordination” email address. If the TAM relates to a LB&I taxpayer, the field office must send an electronic copy of the request (no paper copy to follow) to the “&LB&I HQ” email address. If the request is from an Appeals office, the field office must advise Appeals Policy Planning Quality & Analysis that a request has been submitted. The field office will send a copy of the TAM request to *AP TAM Coordinator by encrypted e-mail. SECTION 8. INITIAL PROCESSING OF THE REQUEST FOR TECHNICAL ADVICE BY THE ASSOCIATE OFFICE Assignment and initial review by Associate office attorney .01 After a request for technical advice has been received by the appropriate Associate office, it will be assigned to an Associate office attorney and reviewer. The Associate office attorney determines whether the request meets all procedural requirements of sections 4, 5, 6, and 7 of this revenue procedure and whether it raises issues that may be appropriately addressed in a TAM. Unless otherwise indicated, all references in this section to the Associate office or Associate office attorney are to the Associate office and attorney with primary responsibility for the TAM request. Other forms of guidance .02 If the assigned reviewer in the Associate office determines that guidance other than a TAM should be provided, the reviewer will immediately notify the Associate Chief Counsel. This other form of guidance may be published guidance, generic advice, or case-specific advice. Although the reviewer should make this determination as soon as possible, it may be made at any time during the processing of the request for technical advice. To make this determination, the reviewer should consider whether the issue has a broad application to similarly situated taxpayers or a practice area and whether resolution of the issue is important to a clear understanding of the tax laws. The Associate Chief Counsel, after consultation with Division Counsel Headquarters and the Operating Division, will decide whether to provide the TAM or issue guidance in another Bulletin No. 2023–1 133 January 3, 2023 Initial acknowledgment and processing form. The Associate Chief Counsel may decide to provide the TAM as well as another type of guidance, if doing so would promote sound tax administration. .03 Upon receipt of a request for technical advice, the Associate office attorney who is assigned as the primary attorney on the request should immediately contact the field office. The purpose of this contact is only to acknowledge receipt of the request. Deficiencies in request leading to return .04 Within 7 calendar days after assignment, the Associate office attorney will contact the field office and field counsel to discuss any deficiencies in the request and will work with the field office and field counsel to correct them. If only minor procedural deficiencies exist, the Associate office attorney will request the additional information without returning the case. If the deficiencies cannot be corrected over the next 7 calendar days, the request will be closed and returned to the field office. The request may be resubmitted when the deficiencies are corrected. If substantial additional information is required to resolve an issue or if major procedural problems cannot be resolved, the Associate office attorney will inform the field office and field counsel that the request for technical advice will be returned. If a request is returned, the field office should promptly notify the taxpayer of that decision and the reasons for the decision. Initial discussion .05 Within 21 calendar days of receipt, the Associate office attorney should contact the field office to discuss any procedural and substantive issues in the request. The Associate office attorney should also inform the field office about any matters referred to another Associate office for assistance and provide points of contact. If additional information requested .06 If additional information is needed, the Associate office attorney will obtain that information from the taxpayer, the field office, or the Director in the most expeditious manner possible. Any additional information requested from the taxpayer by the Associate office must be submitted within 10 calendar days after the request for information is received and must be accompanied by a penalties of perjury statement that conforms with the penalties of perjury statement set forth in section 7.06 of this revenue procedure. The additional information may be submitted by mail, fax, electronic facsimile, or encrypted email attachment by following the procedures described in section 7.04(3) of Rev. Proc. 2023-1. A taxpayer’s failure to submit the additional information requested is considered a failure to participate in a material stage of the TAM process and results in a waiver of the right to the taxpayer conference discussed in section 9. To facilitate prompt action, the Associate office and taxpayers are encouraged to exchange information by fax, electronic facsimile, or express mail service whenever feasible. There are more risks associated with email than with electronic facsimile, such as the possibility that sensitive taxpayer information could be intercepted. Accordingly, the Service encourages taxpayers to use a secure electronic facsimile service for transmitting additional information. The Associate office representative who requests additional information can provide a fax number to which the information can be sent. The Associate office attorney will take certain precautions to protect confidential information. For example, the Associate office attorney will use a cover sheet that identifies the intended recipient of the fax and the number of pages transmitted, that does not identify the taxpayer by name or tax identifying number and that contains a statement prohibiting unauthorized disclosure of the document if a recipient of the faxed document is not the intended recipient of the fax. The cover sheet will be faxed in an order in which it is the first page covering the faxed document. Taxpayer request for extension of time to submit additional information .07 A taxpayer’s request for an extension of time to submit additional information must be made in writing and received by the Associate office within the 10-day period. It must provide January 3, 2023 134 Bulletin No. 2023–1 Where to send additional information compelling facts and circumstances to justify an extension. Only an Associate Chief Counsel may determine whether to grant or deny the request for an extension. Except in rare and unusual circumstances, the Associate office will not agree to an extension of more than 10 calendar days beyond the end of the 10-day period. There is no right to appeal the denial of a request for an extension. .08 Any additional information submitted by the taxpayer should be sent to the attention of the assigned Associate office attorney. Generally, only the original of the additional information is necessary. In appropriate cases, however, the Associate office may request additional copies of the information. In all cases, the taxpayer must also send a copy of the additional information to the field office and field counsel for comment. Any comments by the field office or field counsel must be furnished within an agreed period of time to the Associate office with primary responsibility for the TAM request. If there are no comments, the Associate office attorney should be notified promptly. Tentative conclusions .09 The Associate office attorney will inform the field office and field counsel when all necessary substantive and procedural information has been received. If possible, the Associate office attorney will provide a tentative conclusion. If no tentative conclusion can be reached, the Associate office attorney is encouraged to discuss the underlying complexities with the field office and field counsel. Because the Associate office attorney’s tentative conclusion may change during the preparation and review of the TAM, the tentative conclusion is not considered final. If the tentative conclusion is changed, the Associate office attorney will inform the field office and field counsel. Neither the Associate office, nor the field office or the field counsel, should discuss the tentative conclusion and its underlying rationale with the taxpayer or the taxpayer’s representative until the Associate office is ready to provide a TAM that agrees with the taxpayer’s position or is ready to hold an adverse conference. To afford taxpayers an appropriate opportunity to prepare and present their position at a taxpayer conference, however, the taxpayer or the taxpayer’s representative is to be told (by the Associate office attorney) the tentative conclusion when scheduling the taxpayer conference. Field counsel should be notified of, and given the opportunity to participate in, the notification to the taxpayer of the tentative conclusions and scheduling of the taxpayer conference. SECTION 9. TAXPAYER CONFERENCES Notification of conference .01 If the Associate office proposes to provide a TAM that will be adverse to the taxpayer, and if the taxpayer has not waived its right to a taxpayer conference, the taxpayer will be informed of the time and place of the conference. .02 The taxpayer conference for a TAM must occur within 10 calendar days after the taxpayer is informed that an adverse TAM is proposed. The Associate office will notify the field office and field counsel of the scheduled taxpayer conference and will offer the field office and field counsel the opportunity to participate in the conference. Scheduling confer ence Taxpayer may request extensions .03 Only an Associate Chief Counsel may approve an extension of the 10-day period for holding a conference. Although extensions are granted in appropriate circumstances at the discretion of the Associate Chief Counsel, taxpayers should not expect extensions to be routinely granted. The taxpayer must submit a request for an extension in writing to the Associate office, and must immediately notify the field office and field counsel of the request. The request must contain a detailed justification for the extension and must be submitted sufficiently before the end of the 10-day period to allow the Associate Chief Counsel to consider, and either approve or deny, the request before the end of the 10-day period. If unusual circumstances near the end of the 10-day period make a timely written request impracticable, the taxpayer may orally inform the assigned Bulletin No. 2023–1 135 January 3, 2023 Associate office attorney or reviewer before the end of the 10-day period about the need for an extension and then promptly submit the written request. The Associate office attorney will inform the taxpayer by telephone of the approval or denial of a requested extension. There is no right to appeal the denial of a request for extension. .04 In general, a taxpayer who has not waived the right to a taxpayer conference is entitled by right to only one conference with the Associate office. The conference is normally held at the branch level. A person who has authority to sign the transmittal memorandum in his or her own name, or on behalf of the branch chief, will participate. When more than one branch of an Associate office has taken an adverse position on issues in the request or when the position ultimately adopted by one branch will affect another branch’s determination, a representative from each branch with authority to sign in his or her own name, or for the branch chief, will participate in the conference. The conference is the taxpayer conference for each subject discussed. .05 After the taxpayer conference, the Service will offer the taxpayer an additional conference only if an adverse holding is proposed on a new issue or on the same issue but on grounds different from those discussed at the first conference. If a tentative position is changed at a higher level with a result less favorable to the taxpayer, the taxpayer has no right to another conference if the grounds or arguments on which the change is based were discussed at the taxpayer conference. The limitation on the number of conferences to which a taxpayer is entitled does not prevent the Associate office from inviting a taxpayer to participate in additional conferences if that office determines that additional conferences would be useful. These additional conferences are not to be offered routinely following an adverse decision. One conference of right Additional conferences may be offered Additional information submitted after the conference .06 In order to ensure that the taxpayer conference is productive, the taxpayer should make a reasonable effort to supply all information, documents, and arguments in writing well before the conference. Sometimes, however, it becomes apparent that new information may be helpful in resolving issues discussed at the conference. If the Associate office and the taxpayer agree that such information would be helpful, all such materials must be submitted and received within 10 calendar days after the conference. Any extension of the 10-day period must be requested by the taxpayer in writing and must be approved by the branch chief of the Associate office attorney. Extensions will not be routinely granted. Taxpayers have no right to submit additional materials after the conference, and are discouraged from providing additional copies or versions of materials already submitted. If the additional information is not received from the taxpayer within 10 calendar days plus any extensions granted by the branch chief, the TAM will be issued on the basis of the existing record. The taxpayer must also send a copy of the additional information to the field office and field counsel for comment. If the additional information has a significant impact on the facts in the request, the Associate office will ask the field office and field counsel for comments, both of which will respond within the agreed upon period of time. If there are no comments, the Associate office attorney will be promptly notified. Normally conducted in person Service makes only tentative recommendations .07 Conferences under this section are generally conducted in person, but may be conducted by telephone. .08 At the end of the taxpayer conference, no commitment will be made about the conclusion that the Service will finally adopt for any issue, including the outcome of a request for relief under § 7805(b). January 3, 2023 136 Bulletin No. 2023–1 Conference may not be taped SECTION 10. PREPARATION OF THE TECHNICAL ADVICE Reply consists of two parts .09 No tape, stenographic, or other verbatim recording of a taxpayer conference may be made by any party. .01 The Associate office attorney prepares replies to requests for technical advice in two parts. Each part identifies the taxpayer by name, address, identification number, and tax period(s) involved. The first part of the reply is a transmittal memorandum (Form M-6000). The second part is the TAM, which contains: (1) a statement of the issues; (2) the conclusions of the Associate office; (3) a statement of the facts pertinent to the issues; (4) a statement of the relevant legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements; and (5) a discussion of the rationale supporting the conclusions reached by the Associate office. The conclusions give direct answers, whenever possible, to the specific issues raised by the field office. The Associate office is not bound by the issues as submitted by the taxpayer or by the field office and may reframe the issues to be answered in a TAM after consultation with the field office and field counsel. The discussion of the issues in a TAM will be in sufficient detail so that the field or Appeals officials will understand the reasoning underlying the conclusion. Status of a request .02 The taxpayer or the taxpayer’s authorized representative may obtain information on the status of the request by contacting the field office that requested the advice. The Associate office attorney or reviewer assigned to the TAM request will give frequent status updates to the field office and field counsel. Opportunity for field counsel review .03 The Associate office attorney will inform field counsel regarding the Associate office’s final conclusions before a draft of the TAM is sent to the field office. Field counsel will be offered a reasonable opportunity to review and informally discuss these conclusions with the Associate office before the final TAM is sent to the field office. Copy of preliminary TAM to field office and field counsel .04 After field counsel is given a reasonable opportunity to review the Associate office’s final conclusions, the Associate office attorney will provide a draft of the proposed final version of the TAM to the field office and field counsel. If the field office or field counsel disagrees with the proposed final conclusions, normal reconciliation and reconsideration procedures will be followed to resolve the disagreement. Routing of reply .05 A TAM is generally addressed to the field office that requested it. In the case of issues arising within the jurisdiction of the Director, Government Entities; the Director, Employee Plans or Exempt Organizations Examinations; or the Director, Employee Plans or Exempt Organizations Rulings & Agreements, the TAM is addressed to the appropriate Director with a copy sent to the field office and the field counsel attorney. A copy of a TAM requested by LB&I should be mailed simultaneously to the appropriate Practice Area Director. A copy of a TAM requested by Appeals should be addressed to the appropriate field office, and an electronic copy sent by encrypted e-mail to *AP TAM Coordinator. Copy of final TAM to field counsel and Division Counsel .06 The Associate office will provide a copy of the final TAM to the individual field counsel attorney who assisted the field office in submitting the request and to that attorney’s Associate Area Counsel or other manager, as appropriate. The Associate office also will provide a copy of the final TAM to the Division Counsel for the operating division from which the request originated or that has jurisdiction over the particular matter in the TAM. The TAM may be transmitted electronically if it is in .pdf format, or may be sent by mail or fax transmission. Reconsideration .07 Requests for reconsideration may be submitted by the field office, or in the case of bonds under the jurisdiction of the Director, Government Entities, by that Director after the Associate office has provided a final copy of the TAM to field counsel and Division Counsel. Requests for Bulletin No. 2023–1 137 January 3, 2023 reconsideration should be submitted before the field provides a copy of the TAM to the taxpayer and must describe with specificity the errors in the analysis and conclusions. Requests should focus on points that the TAM overlooked or misconstrued rather than simply re-argue points raised in the initial request. The Associate office will give priority consideration to the request and should act on the request as expeditiously as possible. The Associate office may request further submissions from the field office and field counsel or the taxpayer, but the parties should otherwise make no additional submissions. If a request for reconsideration fails to follow the procedures set forth in this section of this revenue procedure, or the request fails to raise issues or arguments different from those asserted in the initial request for technical advice, the Associate office may return the request for reconsideration without ruling on the request for reconsideration. Discussing contents with the taxpayer Section 6110 .08 The Associate office will not discuss the specific contents of the TAM with the taxpayer until after the field office has provided a copy of the TAM to the taxpayer. .09 Before the TAM is issued, the Associate office will inform the taxpayer in writing of the material likely to appear in the TAM that the taxpayer proposed for deletion but that the Associate office has determined should not be deleted. If so informed, the taxpayer may submit within 10 calendar days any further information or arguments supporting the taxpayer’s proposed deletions. The Associate office will attempt to resolve all disagreements about proposed deletions before the TAM is issued. The taxpayer does not have the right to a conference to resolve any disagreements about material to be deleted from the text of the TAM. For TAMs subject to § 6110, accompanying the TAM is a notice under § 6110(f)(1) of intention to disclose a TAM, including a copy of the version proposed to be open to public inspection and notations of third party communications under § 6110(d). If the transmittal memorandum associated with the TAM provides information not in the TAM, or if the case is returned for further development without issuance of the TAM, the transmittal memorandum may be Chief Counsel Advice, as defined in § 6110(i)(1), subject to public inspection under § 6110. These procedures do not apply to TAMs to the extent that § 6104 applies. See section 7.05 of this revenue procedure and § 6110(l)(1). TAM takes effect when taxpayer receives a copy .10 After a TAM is sent to the field office (or, for Tax Exempt Bonds, Employee Plans, and Exempt Organizations, to the Director), the field office or Director adopts and issues the TAM within the meaning of Treas. Reg. § 301.6110-2(h). Then the field office or Director provides the taxpayer a copy of the TAM, the notice of intention to disclose under § 6110(f)(1), as applicable, and a copy of the version proposed to be open to public inspection, which includes notations of third party communications under § 6110(d), as applicable. If a request for technical advice pertains to more than one taxpayer, and the requirements of section 7.02 of this revenue procedure have been met, the field office or Director will provide each taxpayer with a copy of the TAM and will notify the Associate office when this occurs. The requirement to provide a taxpayer a copy of the TAM does not apply to a TAM involving civil fraud or a criminal investigation, or to a TAM involving a jeopardy or termination assessment. See section 10.12 of this revenue procedure. Taxpayer may protest deletions not made .11 Generally, the Associate office considers only the deletion of material that the taxpayer has proposed for deletion or other deletions as required under § 6110(c) before the TAM is sent to the field office or Director. After receiving the notice of intention to disclose under § 6110(f)(1), the taxpayer may protest the disclosure of certain information in it by submitting a written statement in accordance with the notice of intention to disclose under § 6110(f)(1) (Notice 438, Notice of Intention to Disclose). Public inspection in civil fraud or criminal investigation cases .12 The provisions of this revenue procedure about referring issues upon the taxpayer’s request, telling the taxpayer about the referral of issues, giving the taxpayer a copy of the arguments submitted, submitting proposed deletions, granting conferences in the Associate office, or providing a copy of the TAM to the taxpayer do not apply to a TAM described in § 6110(g)(5) (A), which involves any matter that is the subject of a civil fraud or criminal investigation, or that involves a jeopardy or termination assessment. In these cases, after all proceedings in the January 3, 2023 138 Bulletin No. 2023–1 investigations or assessments are complete, the taxpayer receives a copy of the TAM with the notice of intention to disclose under § 6110(f)(1). The taxpayer may protest the disclosure of certain information in the TAM by submitting a written statement in accordance with the Notice of Intention to Disclose (Notice 438). SECTION 11. WITHDRA WAL OF REQUESTS FOR TECHNICAL ADVICE Taxpayer notified .01 Once a request for a TAM has been sent to the Associate office, only a Director may withdraw the request, and this must be done before the responding transmittal memorandum for the TAM is signed. To withdraw the request, the Director must first notify the taxpayer of the intent to withdraw unless: (1) the period of limitation on assessment is about to expire and the taxpayer has declined to give written consent to extend the period; or (2) the notification would be prejudicial to the best interests of the Government. If the taxpayer does not agree that the request should be withdrawn and wishes to request review of the decision, the procedures in section 5.04 of this revenue procedure for review must be followed. .02 Acknowledgment of the withdrawal of a request submitted by a Director should be sent to the appropriate Director, with a copy to the TAM coordinator. For a withdrawal of a request submitted by Appeals, send an electronic copy by encrypted e-mail to *AP TAM Coordinator. Acknowledgment of withdrawal Associate office may decide not to provide a TAM .03 If the Associate office determines that a TAM will not be provided, it may return the request for technical advice unanswered. This determination must be made on the basis of sound tax administration and must be approved by the Associate Chief Counsel. The decision not to provide a TAM should be an infrequent occurrence and be made only after consultation with field counsel and the requesting field office. If field counsel disagrees with this determination, they may request reconsideration through existing reconciliation procedures. Associate office may pr ovide views .04 If a request for technical advice is withdrawn or an Associate office decides not to provide a TAM, the Associate office may address the substantive issues through other published guidance. The Associate office may also address the substantive issues through legal advice, either generic or case-specific. The decision to address the issues through these other forms of guidance will be based on the general standards for issuing those types of guidance. SECTION 12. USE OF THE TECHNICAL ADVICE Service generally applies advice in processing the taxpayer’s case .01 After a TAM is issued, the field office must process the taxpayer’s case on the basis of the conclusions in the TAM. In the case of a TAM unfavorable to the taxpayer, the Appeals Area Director may decide to settle the issue under existing settlement authority. Appeals, however, will not settle an issue contrary to a TAM if it concerns an organization’s exempt status or private foundation classification, or if it concerns an employee plan’s status or qualification. Thus, if the TAM received by the field office concerns an organization’s exempt status, private foundation classification, or a plan’s status or qualification, the organization or plan has no right to appeal those specific issues with the Appeals Office. Appeals may submit a proposed disposition of the issue contrary to a TAM as a request for a new TAM. If a TAM provides conclusions involving a § 103 obligation and the issuer of this obligation, the field office must apply the conclusions to the issuer and any holder of the obligation, unless a field office separately initiates a request for a TAM on behalf of the holder for the same issue addressed in the TAM involving the issuer, and the Associate office issues a TAM involving that issue and that holder. Bulletin No. 2023–1 139 January 3, 2023 SECTION 13. RETROACTIVITY AND RELIANCE Usually applies retroactively .01 The holdings in a TAM are applied retroactively, whether they are initial holdings or they are later holdings that modify or revoke holdings in a prior TAM. The Associate Chief Counsel with jurisdiction over the TAM, however, may exercise the discretionary authority under § 7805(b) to limit the retroactive effect of any holding. This authority is exercised in rare and unusual circumstances. Revocation or modification of an earlier letter ruling or TAM .02 A TAM may be used to seek revocation or modification of an earlier TAM or revocation or modification of a private letter ruling (PLR). See Rev. Proc. 2023-1, section 11.04 et seq. with respect to revocation or modification of PLRs. Generally, a TAM that revokes or modifies a letter ruling or an earlier TAM will not be applied retroactively if: (1) the applicable law has not changed; (2) the taxpayer directly involved in the letter ruling or earlier TAM relied in good faith on it; and (3) revocation or modification would be detrimental to the taxpayer. The new TAM will be applied retroactively to the taxpayer whose tax liability was directly involved in the letter ruling or TAM if: (1) controlling facts have been misstated or omitted; or (2) the facts at the time of the transaction are materially different from the controlling facts on which the letter ruling or earlier TAM was based. If a letter ruling or a TAM is modified or revoked with retroactive effect, the notice to the taxpayer, except in fraud cases, should set forth the grounds on which the modification or revocation is being made and the reason why the modification or revocation is being applied retroactively. Continuing action or series of actions .03 If an issue addressed in the TAM relates to a continuing action or a series of actions, it is generally applied until it is withdrawn or until the conclusion is modified or revoked by a final decision in favor of the taxpayer with respect to that issue, the enactment of legislation, the ratification of a tax treaty, a decision of the United States Supreme Court, or the issuance of temporary regulations, final regulations, a revenue ruling, or other statement published in the Internal Revenue Bulletin. Publication of a notice of proposed rulemaking does not affect the application of a TAM. If a new holding in a TAM is less favorable to the taxpayer than the holding in an earlier TAM, the new holding is generally not applied to the tax period when the taxpayer relied on the earlier holding. It will be applied to that tax period, however, if material facts on which the earlier TAM was based have changed. Other taxpayers .04 Under § 6110(k)(3), a taxpayer may not rely on a TAM issued by the Service for another taxpayer. In addition, retroactive or non-retroactive treatment to one member of a practice area directly involved in a letter ruling or TAM does not extend to another member of that same practice area, and retroactive or non-retroactive treatment to one client of a tax practitioner does not extend to another client of that same practitioner. The tax liability of each employee covered by a letter ruling or TAM relating to a pension plan of an employer is directly involved in the letter ruling or TAM. SECTION 14. HOW MAY RETROACTIVE EFFECT BE LIMITED? Request for relief under § 7805(b) .01 A taxpayer with respect to whom a TAM is issued, or for whom a TAM request is pending, may request that the appropriate Associate Chief Counsel limit the retroactive effect of any holding in the TAM or of any subsequent modification or revocation of the TAM. For a pending request for technical advice, the taxpayer should make the request for relief under § 7805(b) as part of the initial request for advice. The Associate office will consider a request for relief under § 7805(b) made at a later time if the Director determines that there is justification for the delay in the making of the request. The Director’s determination that the delayed request for § 7805 is not justified cannot be appealed. Requests for relief under § 7805(b) relating to the revocation or modification January 3, 2023 140 Bulletin No. 2023–1 Form of request for relief – in general of determination letters and letter rulings issued by TE/GE are handled under the procedures in sections 23 and 29 of Rev. Proc. 2023-4, and section 12 of Rev. Proc. 2023-5, this Bulletin. .02 During the course of an examination of a taxpayer’s return by the field office or during consideration of the taxpayer’s return by the Appeals Area Director, a taxpayer’s request to limit retroactivity must be made in the form of a request for a TAM. This includes recommendations by a Director that an earlier letter ruling or TAM be modified or revoked. The request must meet the general requirements of a request for technical advice. It must also: (1) state that it is being made under § 7805(b); (2) state the relief sought; (3) explain the reasons and arguments in support of the relief sought; and (4) include any documents bearing on the request. The taxpayer’s request must be submitted to the Director, who should then forward the request to the Associate office for consideration. If a taxpayer submits a request for relief after the initial TAM request, the taxpayer must provide justification for having delayed the request. Requests for relief under § 7805(b) relating to the revocation or modification of determination letters and letter rulings issued by TE/ GE are handled under the procedures in sections 23 and 29 of Rev. Proc. 2023-4, and section 12 of Rev. Proc. 2023-5, this Bulletin. Form of request for relief – continuing transaction before examination of return .03 A request for relief under § 7805(b) must be made in the form of a request for a letter ruling if: (1) a TAM addressing a continuing transaction is modified or revoked by later published guidance; and (2) the request for relief is submitted before an examination has begun covering the tax period(s) for which relief is sought. The requirements for a letter ruling request are given in Rev. Proc. 2023-1 (this Bulletin). Taxpayer’s right to a conference .04 When a request for a TAM concerns only the application of § 7805(b), the taxpayer has the right to a conference with the Associate office in accordance with the provisions of section 9 of this revenue procedure. If the request for application of § 7805(b) is included in the request for a TAM on the substantive issues or is made before the taxpayer conference on the substantive issues, the § 7805(b) issues will be discussed at the taxpayer’s one conference of right. If the request for the application of § 7805(b) is made as part of a pending TAM request after a taxpayer conference has been held on the substantive issues and the Director determines that there is justification for having delayed the request, then the taxpayer will have the right to a taxpayer conference concerning the application of § 7805(b), with the conference limited to discussion of this issue only. Reconsideration of request for relief under § 7805(b) .05 When a TAM grants a taxpayer relief under § 7805(b), the Director may not request reconsideration of the § 7805(b) issue unless the Director determines there has been a misstatement or omission of controlling facts by the taxpayer in its request for § 7805(b) relief. SECTION 15. SIGNIFICANT CHANGES MADE TO REV. PROC. 2022-2 SECTION 16. EFFECT ON OTHER DOCUMENTS SECTION 17. EFFECTIVE DATE DRAFTING INFORMATION Rev. Proc. 2022-2 is superseded. This revenue procedure is effective January 03, 2023. The principal author of this revenue procedure is David Villagrana of the Office of Associate Chief Counsel (Procedure and Administration). For further information regarding this revenue procedure for matters under the jurisdiction of: Bulletin No. 2023–1 141 January 3, 2023 (1) the Associate Chief Counsel (Corporate), contact T. Ian. Russell or Jean Broderick at (202) 317-3181 (not a toll-free number); (2) the Associate Chief Counsel (Financial Institutions and Products), contact K. Scott Brown at (202) 317-4423 (not a toll-free number); (3) the Associate Chief Counsel (Income Tax and Accounting), contact R. Matthew Kelley at (202) 317-7002 (not a toll-free number); (4) the Associate Chief Counsel (Passthroughs and Special Industries), contact Jason Deirmenjian at (202) 317-4137 (not a toll-free number); (5) the Associate Chief Counsel (Procedure and Administration), contact Stephanie Chernoff at (202) 317-3400 (not a toll-free number); (6) the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), contact Melissa L. Duce at (202) 317-6000 (not a toll-free number); (7) the Associate Chief Counsel (International), contact Nancy Galib at (202) 317-3800 (not a toll-free number); (8) the Commissioner (Large Business & International Division), contact Shirley S. Lee at (202) 317-3152 (not a toll-free number); (9) the Commissioner (Small Business/Self-Employed Division), contact Charles Hall at (240) 613-6353 (not a toll-free number); (10) the Commissioner (Wage and Investment Division), contact Geoffrey Gerbore at (631) 977-3210 (not a toll-free number); or (11) the Office of Appeals, contact Mark K. Wesner at (602) 636-9571 (not a toll-free number). January 3, 2023 142 Bulletin No. 2023–1 INDEX References are to sections in Rev. Proc. 2023-2 Additional Information – initial processing of TAM request ............................................................................................................8.06 – taxpayer request for extension of time to send ........................................................................................8.07 – where to send ...........................................................................................................................................8.08 – after taxpayer conference .........................................................................................................................9.06 – proposed deletions under § 6110 ..................................................................................................7.05, 10.09 Appeal of decision to seek or not seek TAM ..............................................................................................5.03 – The decision of the Director, the LB&I Territory Manager, or the Tax Exempt Bonds Program Manager may be reviewed but not appealed .............................................................................5.04 Civil fraud or criminal investigation cases ...............................................................................................10.12 Conferences – offered ............................................................................................................................................6, 9, 14.04 – after taxpayer conference .........................................................................................................................9.05 – scheduling .......................................................................................................................................6.06, 9.02 request to limit retroactivity ..................................................................................................................14.04 telephone conferences ....................................................................................................................6.07, 9.07 Definitions – Appeals officer .........................................................................................................................................2.03 – Director ....................................................................................................................................................2.02 – field office ................................................................................................................................................2.06 – field counsel .............................................................................................................................................2.07 – frivolous issue ..........................................................................................................................................4.04 – taxpayer ....................................................................................................................................................2.04 – technical advice ........................................................................................................................................1.01 Discussions with Taxpayers – contents of TAM ....................................................................................................................................10.08 – substantive issues at pre-submission conference .....................................................................................6.09 – tentative conclusion in TAM ....................................................................................................................8.09 Employee Plans and Exempt Organizations – application of § 6104 ...............................................................................................................................7.05 – mandatory technical advice on employee plans matters ..........................................................................3.04 – requests by Exempt Organizations Rulings & Agreements .....................................................................3.05 – request for relief under § 7805(b) for matters handled by TE/GE ...........................................................4.07 Extension of Time – to appeal decision not to request a TAM ..................................................................................................5.03 – to disagree with statement of facts in technical advice request ...............................................................7.06 – to schedule conference .............................................................................................................................9.03 – to submit additional information requested by Associate office in initial processing of TAM ................8.07 – to submit additional information after conference ...................................................................................9.06 Foreign laws and documents .......................................................................................................................7.03 Issues Eligible for TAMs .................................................................................................................................3 Issues Not Eligible for TAMs ..........................................................................................................................4 Bulletin No. 2023–1 143 January 3, 2023 Penalties of Perjury Statement – form ..........................................................................................................................................................7.06 – required when no factual agreement ........................................................................................................7.06 – required with additional information .......................................................................................................8.06 Power of Attorney .......................................................................................................................................6.11 Pre-submission Conferences ............................................................................................................................6 Public Inspection Under § 6110 – deletion statement required ......................................................................................................................7.05 – exception when § 6104 applies ................................................................................................................7.05 – notice of intention to disclose ................................................................................................................10.09 – protesting deletions not made ................................................................................................................10.11 Responsibility for Requesting Advice ........................................................................................................5.01 Retroactive Effect – request to limit retroactivity ...................................................................................................................14.01 – format of request .........................................................................................................................14.02, 14.03 – right to conference ................................................................................................................................14.04 Section 301.9100 Relief .............................................................................................................................4.03 Status of TAM ...........................................................................................................................................10.02 Taxpayer Participation ................................................................................................................................3.03 – consequences of failure to participate in material stage .................................................................7.06, 8.06 What to Include in the Request for Advice – Memorandum of issues, facts, law, and arguments ..................................................................................7.01 – Statement proposing information to be deleted from public inspection ..................................................7.05 – Transmittal Form 4463 .............................................................................................................................7.07 – Number of copies .....................................................................................................................................7.09 Where to Send – information required prior to pre-submission conference .......................................................................6.05 – request for referral for a TAM ..................................................................................................................5.02 Withdrawal of TAM Requests ........................................................................................................................11 January 3, 2023 144 Bulletin No. 2023–1 26 CFR 601.201: Rulings and determination letters. Rev. Proc. 2023-3 TABLE OF CONTENTS SECTION 1. PURPOSE AND NATURE OF CHANGES .......................................................144 SECTION 2. BACKGROUND AND SCOPE ................................................................144 SECTION 3. AREAS IN WHICH RULINGS WILL NOT BE ISSUED ...........................................145 SECTION 4. AREAS IN WHICH RULINGS WILL NOT ORDINARILY BE ISSUED .............................153 SECTION 5. AREAS UNDER STUDY IN WHICH RULINGS WILL NOT BE ISSUED ............................158 SECTION 6. AREAS COVERED BY AUTOMATIC APPROVAL PROCEDURES ................................160 SECTION 7. EFFECT ON OTHER REVENUE PROCEDURES ...............................................161 SECTION 8. EFFECTIVE DATE ..........................................................................161 SECTION 9. PAPERWORK REDUCTION ACT .............................................................161 DRAFTING INFORMATION .............................................................................161 SECTION 1. PURPOSE AND NATURE OF CHANGES .01 The purpose of this revenue proce- dure is to update Rev. Proc. 2022-3, 2022- 1 I.R.B.144, by providing a revised list of those areas of the Internal Revenue Code under the jurisdiction of the Associate Chief Counsel (Corporate), the Associate Chief Counsel (Financial Institutions and Products), the Associate Chief Counsel (In- come Tax and Accounting), the Associate Chief Counsel (Passthroughs and Special Industries), the Associate Chief Counsel (Procedure and Administration), and the Associate Chief Counsel (Employee Ben- efits, Exempt Organizations, and Employ- ment Taxes) (EEE) relating to issues on which the Internal Revenue Service (the “Service”) will not issue letter rulings or determination letters. For a list of areas un- der the jurisdiction of the Associate Chief Counsel (International) relating to inter- national issues on which the Service will not issue letter rulings or determination letters, see Rev. Proc. 2023-7, this Bulle- tin. For a list of areas under the jurisdic- tion of the Commissioner, Tax Exempt and Government Entities Division relating to issues, exempt organizations, plans, or plan amendments on which the Service will and will not issue letter rulings or determina- tion letters, see Rev. Proc. 2023-4 and Rev. Proc. 2023-5, this Bulletin. .02 Changes. 1) Section 3.01(1), regarding §§ 40, 40A, 4041, 4081, 4083(a), and 6426, has been modified. 2) Section 3.01(108), regarding § 1362(f), has been added. 3) Section 3.01(109), regarding § 1362(f), has been added. 4) Section 3.01(120), regarding §§ 3121, 3306, and 3401, has been modified. 5) Section 3.01(121), regarding §§ 3121 and 3401, has been added. 6) Section 3.01(128), regarding § 4671, has been added. 7) Section 3.01(138), regarding § 4980, has been added. 8) Section 4.01(47), regarding § 1362, has been modified. 9) Section 4.01(48), regarding § 1362, has been added. 10) Old section 5.01(16), regarding § 2056, has been removed. 11) Old section 5.01(20), regarding § 2523, has been removed. 12) Old section 5.01(21), regarding §§ 2601 and 2663, has been renumbered to section 5.01(19) and modified. 13) Section 5.02, regarding general areas in which the Service is temporarily not issuing rulings or determination letters because those matters are under study, has been modified. 14) Section 6.08, regarding § 2010(c)(5) (A), has been modified. SECTION 2. BACKGROUND, SCOPE OF APPLICATION, AND NO-RULE ISSUES PART OF INTEGRATED TRANSACTION .01 Background. Whenever appropriate in the interest of sound tax administration, it is the pol- icy of the Service to answer inquiries of individuals and organizations regarding their status for tax purposes and the tax effects of their acts or transactions, pri- or to the filing of returns or reports that are required by the revenue laws. In em- ployee plans matters described in section 5.15 of Rev. Proc. 2023-1, this Bulletin, the Associate Chief Counsel (EEE) may issue letter rulings after the filing of re- turns or reports that are required by the revenue laws. Bulletin No. 2023–1 145 January 3, 2023 There are, however, certain areas in which the Service will not issue rulings or determination letters. These areas are set forth in sections 3, 4, 5, and 6 of this rev- enue procedure. Section 3 sets forth those areas in which rulings or determination letters will not be issued. Section 4 sets forth those areas in which rulings or determination letters will not ordinarily be issued. Whenever used in this revenue procedure, “not ordinari- ly” means that unique and compelling reasons must be demonstrated to justify the issuance of a ruling or determination letter (which may include consequences of the COVID-19 pandemic). Taxpayers contemplating a request for a ruling in any of the areas set forth in section 4 are encouraged to request a pre-submission conference to consider whether unique and compelling reasons exist. See section 10.07 of Rev. Proc. 2023-1. Section 5 sets forth those areas in which the Service is temporarily not issuing rulings or deter- mination letters because those matters are under study. Section 6 sets forth areas in which the Service has provided automatic approval procedures in lieu of issuing rul- ings or determination letters. The Service will not ordinarily issue rulings for these matters when a taxpayer does not qualify for automatic approval. See Rev. Proc. 2023-1, this Bulletin, particularly section 6 captioned “Under What Circumstances Does The Service Not Issue Letter Rulings Or Determina- tion Letters?” for general instructions and other situations in which the Service will not or ordinarily will not issue letter rul- ings or determination letters. With respect to the items listed, reve- nue rulings or revenue procedures may be published in the Internal Revenue Bulle- tin from time to time to provide general guidelines regarding the position of the Service. Additions or deletions to this reve- nue procedure as well as restatements of items listed will be made by modification of this revenue procedure. Changes will be published as they occur throughout the year and will be incorporated annu- ally in a new revenue procedure pub- lished as the third revenue procedure of the year. These lists should not be con- sidered all-inclusive because the Service may decline to issue a letter ruling or a determination letter when appropriate in the interest of sound tax administration (including due to resource constraints) or on other grounds whenever warranted by the facts or circumstances of a particular case. Decisions not to rule on individual cases (as contrasted with those that pres- ent significant pattern issues) are not re- ported in this revenue procedure and will not be added to subsequent revisions. If the Service determines that it is not in the interest of sound tax administration to issue a letter ruling or determination letter due to resource constraints, it will adopt a consistent approach with respect to taxpayers that request a ruling on the same issue. The Service will also consider adding the issue to the no-rule list at the first opportunity. See section 6.02 of Rev. Proc. 2023-1, this Bulletin. .02 Scope of Application. This revenue procedure does not pre- clude the submission of requests for tech- nical advice to the National Office from other offices of the Service. .03 No-Rule Issues Part of Integrated Transaction. If it is impossible for the Service to determine the tax consequences of an in- tegrated transaction without knowing the resolution of an issue on which the Ser- vice will not issue rulings or determina- tion letters under this revenue procedure involving a part of the transaction or a re- lated transaction, the taxpayer must state in the request to the best of the taxpayer’s knowledge and belief the tax consequenc- es of the no-rule issue. The Service’s ruling or determination letter will state that the Service did not consider, and no opinion is expressed upon, that issue. In appropriate cases the Service may decline to issue rulings or determination letters on such integrated transactions due to the relevance of the no-rule issue, despite the taxpayer’s representation. See also section 4.02(2) of this revenue procedure. SECTION 3. AREAS IN WHICH RULINGS OR DETERMINATION LETTERS WILL NOT BE ISSUED .01 Specific Questions and Problems. (1) Sections 40, 40A, 40B, 4041, 4081, 4083(a), and 6426. Alcohol, etc., Used as Fuel; Biodiesel and Renewable Diesel Used as Fuel; Sustainable Aviation Fuel; Imposition of Tax (§§ 4041 and 4081); Taxable Fuel; Credit for Alcohol Fuel, Biodiesel, and Alternative Fuel Mixtures. Whether a particular fuel or fuel mixture is subject to excise tax or whether a par- ticular fuel or fuel mixture qualifies for an excise tax credit or payment, or a related income tax credit, under the Internal Rev- enue Code. (2) Section 42. Low-Income Housing Credit. Whether under § 42(j)(4)(E) a casualty loss has been restored by recon- struction or replacement within a reason- able period of time. The Service may issue a determination letter in this case. See sec- tion 12 of Rev. Proc. 2023-1, this Bulletin. (3) Section 45. Electricity Produced from Certain Renewable Resources, Etc. The allocation by a partnership of the § 45 credit, the validity of the partnership, or whether any taxpayer is a valid partner in the partnership. (4) Section 45. Electricity Produced from Certain Renewable Resources, Etc.—Whether the taxpayer meets the requirements of § 45 or Notice 2010-54, 2010-40 I.R.B. 403, for refined coal. (5) Sections 45. Electricity Produced from Certain Renewable Resources, Etc.—The application of the beginning of construction requirement under § 45. (6) Section 45Q.—Credit for Carbon Oxide Sequestration.—The application of the beginning of construction requirement under § 45Q. (7) Section 45Q.—Credit for Carbon Oxide Sequestration.—The allocation by a partnership of the § 45Q credit, the va- lidity of the partnership, or whether any partner is a valid partner in the partner- ship. (8) Section 47. Rehabilitation Cred- it.—The allocation by a partnership of the § 47 rehabilitation credit, the validity of the partnership, or whether any taxpayer is a valid partner in the partnership. (9) Section 48.—Energy Credit.—The application of the beginning of construc- tion requirement under § 48, including to a qualified investment credit facility for which a taxpayer makes an election under § 48(a)(5) to claim a credit under § 48 in lieu of a credit under § 45. (10) Section 61.—Gross Income De- fined.—Whether an amount is not includ- ed in a taxpayer’s gross income under section 61 because the taxpayer receives January 3, 2023 146 Bulletin No. 2023–1 the amount subject to an unconditional obligation to repay the amount. (11) Section 61.—Gross Income De- fined.—Whether amounts voluntari- ly deferred by a taxpayer under a de- ferred-compensation plan maintained by an organization described in § 501 (other than an eligible plan maintained by an eli- gible employer pursuant to the provisions of § 457(b)) are currently includible in the taxpayer’s gross income. (12) Section 61.—Gross Income De- fined.—Whether a split-dollar life insur- ance arrangement is “materially modified” within the meaning of § 1.61-22(j)(2) of the Income Tax Regulations. (Also §§ 83, 301, 1401, 2501, 3121, 3231, 3306, 3401, and 7872.) (13) Sections 61, 111, and 1001.— Gross Income Defined; Recovery of Tax Benefit Items; Determination of Amount of and Recognition of Gain or Loss.— Whether, in connection with a transaction involving the establishment or amend- ment of a welfare benefit fund (including Voluntary Employees’ Beneficiary As- sociations (VEBAs)), a transfer of assets between welfare benefit funds (including VEBAs), or a new or different use of as- sets of a welfare benefit fund (including a VEBA), (i) the employer, plan sponsor, welfare benefit fund (including a VEBA), or covered individuals must include any amount in gross income under § 61 or the tax benefit rule, or (ii) the employer or welfare benefit fund (including a VEBA) have engaged in a sale or exchange of as- sets under § 1001. (14) Sections 61, 451, and 1001.— Gross Income Defined; General Rule for Taxable Year of Inclusion; Determination of Amount of and Recognition of Gain or Loss.—Whether, under authorization by an appropriate state agency to recover cer- tain costs pursuant to state specified cost recovery legislations, any investor-owned utility company realizes income upon: (i) the creation of an intangible property right; (ii) the transfer of that intangible property right; or (iii) the securitization of the intangible property right. (15) Section 79.—Group-Term Life Insurance Purchased for Employees.— Whether a group insurance plan for 10 or more employees qualifies as group-term insurance, if the amount of insurance is not computed under a formula that would meet the requirements of § 1.79-1(c)(2) (ii) of the Income Tax Regulations had the group consisted of fewer than 10 employ- ees. (16) Section 83.—Property Transferred in Connection with Performance of Ser- vices.—Whether a restriction constitutes a substantial risk of forfeiture if the em- ployee is a controlling shareholder. Also, whether a transfer has occurred, if the amount paid for the property involves a nonrecourse obligation. (17) Section 83.—Property Transferred in Connection with Performance of Ser- vices.—Which corporation is entitled to the deduction under § 83(h) in cases in which a corporation undergoes a corpo- rate division, if the facts are not similar to those described in Rev. Rul. 2002-1, 2002-1 C.B. 268. (18) Section 101.—Certain Death Ben- efits.—Whether there has been a transfer for value for purposes of § 101(a) in situa- tions involving a grantor and a trust when (i) substantially all of the trust corpus con- sists or will consist of insurance policies on the life of the grantor or the grantor’s spouse, (ii) the trustee or any other person has a power to apply the trust’s income or corpus to the payment of premiums on pol- icies of insurance on the life of the grantor or the grantor’s spouse, (iii) the trustee or any other person has a power to use the trust’s assets to make loans to the grant- or’s estate or to purchase assets from the grantor’s estate, and (iv) there is a right or power in any person that would cause the grantor to be treated as the owner of all or a portion of the trust under §§ 673 to 677. (19) Sections 101, 761, and 7701.— Certain Death Benefits; Terms Defined; Definitions.—Whether, in connection with the transfer of a life insurance policy to an unincorporated organization, (i) the orga- nization will be treated as a partnership under §§ 761 and 7701, or (ii) the transfer of the life insurance policy to the organi- zation will be exempt from the transfer for value rules of § 101, when substantially all of the organization’s assets consist or will consist of life insurance policies on the lives of the members. (20) Section 102.—Gifts and Inheri- tances.—Whether a transfer is a gift with- in the meaning of § 102(a). (21) Section 105(h).—Amount Paid to Highly Compensated Individuals Under a Discriminatory Self-Insured Medical Ex- pense Reimbursement Plan.—Whether a self-insured medical reimbursement plan satisfies the requirements of § 105(h) for a plan year. (22) Section 107.—Rental Value of Parsonages.—Whether amounts distrib- uted to a retired minister from a pension or annuity plan should be excludible from the minister’s gross income as a parsonage allowance under § 107. (23) Section 107.—Rental Value of Parsonages.—Whether an individual is a “minister of the gospel” for Federal tax purposes. (Also §§ 1402(a)(8), (c)(4), and (e), 3121(b)(8)(A), and 3401(a)(9).) (24) Section 111.—See section 3.01(13), above. (25) Section 115.—Income of States, Municipalities, Etc.—The results of trans- actions pursuant to a plan or arrangement created by state statute a primary objec- tive of which is to enable participants to pay for the costs of a post-secondary edu- cation for themselves or a designated ben- eficiary, including: (i) whether the plan or arrangement, itself, is an entity separate from a state and, if so, how the plan or arrangement is treated for Federal tax pur- poses; and (ii) whether any contract under the plan or arrangement is a debt instru- ment and, if so, how interest or original issue discount attributable to the contract is treated for Federal tax purposes. (Also §§ 61, 163, 1275, 2501, and 7701.) (26) Section 115.—Income of States, Municipalities, Etc.—Whether the in- come of membership organizations estab- lished by states exclusively to reimburse members for losses arising from work- men’s compensation claims is excluded from gross income under § 115. (27) Section 115.—Income of States, Municipalities, Etc.—Whether some, but not all, income of an entity is from the ex- ercise of an essential government function in order to be excluded from gross income under § 115. (28) Section 115.—Income of States, Municipalities, Etc.—Whether income accruing to a trust, or other entity, relating to or associated with a qualified retirement plan described in § 401(a) is excluded from gross income under § 115. (29) Section 117.—Qualified Schol- arships.—Whether amounts paid to re- search fellows and research associates are Bulletin No. 2023–1 147 January 3, 2023 scholarships or fellowships excluded from wages for FICA tax purposes. (30) Section 117.—Qualified Schol- arships.—Whether an employer-related scholarship or fellowship grant is exclu- dible from the employee’s gross income, if there is no intermediary private founda- tion distributing the grants, as described in Rev. Proc. 76-47, 1976-2 C.B. 670. (31) Section 118.—Contributions to the Capital of a Corporation.—Whether a transfer of an intertie as defined in sec- tion III. B. 2. of Notice 2016-36, 2016-25 I.R.B. 1029, meets all of the requirements under the safe harbor provided by Notice 2016-36. (32) Section 119.—Meals or Lodg- ing Furnished for the Convenience of the Employer.—Whether the value of meals or lodging is excludible from gross in- come by an employee who is a controlling shareholder of the employer. (33) Section 121.—Exclusion of Gain from Sale of Principal Residence.— Whether property qualifies as the taxpay- er’s principal residence. (34) Section 125.—Cafeteria Plans.— Whether amounts used to provide group- term life insurance under § 79, accident and health benefits under §§ 105 and 106, and dependent care assistance programs under § 129 are includible in the gross income of participants and considered “wages” for purposes of §§ 3401, 3121, and 3306 when the benefits are offered through a cafeteria plan. (35) Section 162.—Trade or Business Expenses.—Whether compensation is reasonable in amount. (36) Section 162.—Trade or Business Expenses.—Whether a taxpayer is en- gaged in a trade or business. This area does not include a request for a ruling that relies on a representation from a taxpayer that the taxpayer is or is not engaged in a trade or business, or a request for a ruling that relies on factual information provided by the taxpayer evidencing the active con- duct of a trade or business (for example, a request that relies on the taxpayer’s ac- tive conduct of a trade or business as ev- idenced by financial statements provided by the taxpayer). (37) Section 163.—Interest.—The in- come tax consequences of transactions involving “shared appreciation mortgage” (SAM) loans in which a taxpayer, borrow- ing money to purchase real property, pays a fixed rate of interest on the mortgage loan below the prevailing market rate and will also pay the lender a percentage of the appreciation in value of the real property upon termination of the mortgage. This applies to all SAM arrangements in which the loan proceeds are used for commercial or business activities, or to finance a per- sonal residence, if the facts are not simi- lar to those described in Rev. Rul. 83-51, 1983-1 C.B. 48. (Also §§ 61, 451, 461, 856, 1001, and 7701.) (38) Sections 165, 381, and 1502.— Losses; Carryovers in Certain Corporate Acquisitions; Regulations.—In determin- ing whether a loss for worthless securities is subject to § 165(g)(3), (i) whether the source of any gross receipts may be deter- mined by reference to the source of gross receipts of a counter party to an intercom- pany transaction, as defined in § 1.1502- 13(b)(1) (e.g., an intercompany distribu- tion to which § 1.1502-13(f)(2) applies), other than an intercompany transaction to which § 381(a) applies, and (ii) in an in- tercompany transaction to which § 381(a) applies, whether the acquiring corporation takes into account historic gross receipts of the distributor or transferor corporation, if the intercompany transaction is part of a plan to claim a deduction for worthless se- curities under § 165(g)(3). (39) Section 170.—Charitable, Etc., Contributions and Gifts.—Whether a charitable contribution deduction under § 170 is allowed for a transfer of an in- terest in a limited partnership or a limited liability company taxed as a partnership to an organization described in § 170(c). (40) Section 170.—Charitable, Etc., Contributions and Gifts.—Whether a tax- payer who advances funds to a charitable organization and receives therefor a prom- issory note may deduct as contributions, in one taxable year or in each of several years, amounts forgiven by the taxpayer in each of several years by endorsement on the note. (41) Section 170.—Charitable, Etc., Contributions and Gifts.—Whether an or- ganization is or continues to be described in § 170(b)(1)(A) (other than clause (v)) or § 170(c)(2) - (5), including, for exam- ple, whether changes in an organization’s activities or operations will affect or jeop- ardize the organization’s status as an or- ganization described in those sections. The Associate Chief Counsel (EEE) will rule, however, on specific legal questions related to §§ 170(b)(1)(A) or 170(c) that are not otherwise described in this reve- nue procedure. See Rev. Proc. 2023-5, this Bulletin, for the procedures for obtaining determination letters on public charity sta- tus under § 170. (42) Section 181.—Treatment of Cer- tain Qualified Film and Television Produc- tions.—The determination under § 1.181- 1(a)(1) and (2) as to who is the owner of a qualified film or television production. (43) Section 199.—Income Attribut- able to Domestic Production Activities.— The determination under § 1.199-3(f) (1) as to who is the taxpayer that has the benefits and burdens of ownership under Federal income tax principles of any qual- ifying production property (as defined in § 1.199-3(j)(1)), qualified film (as defined in § 1.199-3(k)), or utilities (as defined in § 1.199-3(l)) during the period in which a qualifying activity under § 199 occurs. (44) Section 213.—Medical, Dental, Etc., Expenses.—Whether a capital ex- penditure for an item that is ordinarily used for personal, living, or family pur- poses, such as a swimming pool, has as its primary purpose the medical care of the taxpayer or the taxpayer’s spouse or dependent, or is related directly to such medical care. (45) Section 216.—Deduction of Tax- es, Interest, and Business Depreciation by Cooperative Housing Corporation Tenant-Stockholder.—Whether a unit constitutes an “apartment in a building” under § 216(b)(1)(B). (46) Section 264.—Certain Amounts Paid in Connection with Insurance Con- tracts.—Whether § 264(d)(1) applies. (47) Section 264(c)(1).—Contracts Treated as Single Premium Contracts.— Whether “substantially all” the premiums of a contract of insurance are paid within a period of 4 years from the date on which the contract is purchased. Also, whether an amount deposited is in payment of a “substantial number” of future premiums on such a contract. (48) Sections 267, 304, 331, 332, 351, and 1502. Losses, Expenses, and Interest with Respect to Transactions Between Related Taxpayers; Redemption Through Use of Related Corporations; Gain or January 3, 2023 148 Bulletin No. 2023–1 Loss to Shareholders in Corporate Liqui- dations; Complete Liquidations of Sub- sidiaries; Transfer to Corporation Con- trolled by Transferor; Regulations.—The treatment of transactions in which stock of a corporation is transferred with a plan or intention that the corporation be liqui- dated in a transaction intended to qualify under § 331. (49) Section 269.—Acquisitions Made to Evade or Avoid Income Tax.—Wheth- er an acquisition is within the meaning of § 269. (50) Section 274.—Disallowance of Certain Entertainment, Etc., Expenses.— Whether a taxpayer who is traveling away from home on business may, in lieu of sub- stantiating the actual cost of meals, deduct a fixed per-day amount for meal expenses that differs from the amount authorized by the revenue procedure providing option- al rules for substantiating the amount of travel expenses for the period in which the expense was paid or incurred. (51) Section 302.—Distributions in Redemption of Stock.—Whether § 302(b) applies when the consideration given in redemption by a corporation consists en- tirely or partly of its notes payable, and the shareholder’s stock is held in escrow or as security for payment of the notes with the possibility that the stock may or will be returned to the shareholder in the future, upon the happening of specific defaults by the corporation. (52) Section 302.—Distributions in Redemption of Stock.—Whether § 302(b) applies when the consideration given in redemption by a corporation in exchange for a shareholder’s stock consists entirely or partly of the corporation’s promise to pay an amount based on, or contingent on, future earnings of the corporation, when the promise to pay is contingent on work- ing capital being maintained at a certain level, or any other similar contingency. (53) Section 302.—Distributions in Redemption of Stock.—Whether § 302(b) applies to a redemption of stock, if, af- ter the redemption, the distributing cor- poration uses property that is owned by the shareholder from whom the stock is redeemed and the payments by the cor- poration for the use of the property are dependent upon the corporation’s future earnings or are subordinate to the claims of the corporation’s general creditors. Payments for the use of property will not be considered to be dependent upon future earnings merely because they are based on a fixed percentage of receipts or sales. (54) Section 302.—Distributions in Redemption of Stock.—Whether the ac- quisition or disposition of stock described in § 302(c)(2)(B) has, or does not have, as one of its principal purposes the avoid- ance of Federal income taxes within the meaning of that section, unless the facts and circumstances are materially identical to those set forth in Rev. Rul. 85-19, 1985- 1 C.B. 94; Rev. Rul. 79-67, 1979-1 C.B. 128; Rev. Rul. 77-293, 1977-2 C.B. 91; Rev. Rul. 57-387, 1957-2 C.B. 225; Rev. Rul. 56-584, 1956-2 C.B. 179; or Rev. Rul. 56-556, 1956-2 C.B. 177. (55) Section 302(b)(4) and (e).—Re- demption from Noncorporate Shareholder in Partial Liquidation; Partial Liquidation Defined.—The amount of working capital attributable to a business or portion of a business terminated that may be distribut- ed in partial liquidation. (56) Section 304. See section 3.01(48), above. (57) Section 312.—Effect on Earnings and Profits.—The determination of the amount of earnings and profits of a cor- poration. (58) Sections 331, 453, and 1239.— Gain or Loss to Shareholders in Corporate Liquidations; Installment Method; Gain from Sale of Depreciable Property Be- tween Certain Related Taxpayers.—The tax effects of a transaction in which there is a transfer of property by a corporation to a partnership or other noncorporate en- tity (or the transfer of stock to such entity followed by a liquidation of the corpora- tion) when more than a nominal amount of the stock of such corporation and the capi- tal or beneficial interests in the purchasing entity (that is, more than 20 percent in val- ue) is owned by the same persons, and the consideration to be received by the selling corporation or the selling shareholders includes an installment obligation of the purchasing entity. (59) Section 331. See section 3.01(48), above. (60) Sections 332, 351, 368, and 1036.—Complete Liquidations of Sub- sidiaries; Transfer to Corporation Con- trolled by Transferor; Definitions Relating to Corporate Reorganizations; Stock for Stock of Same Corporation.—Whether a transaction qualifies under § 332, 351, or 1036 for nonrecognition treatment or whether it constitutes a corporate reor- ganization within the meaning of § 368, except a transaction intended to qualify under either § 368(a)(1)(D) and § 355 or § 368(a)(1)(G) and § 355, and whether various tax consequences (such as non- recognition and basis) result from the ap- plication of that section. The Service will instead rule only on significant issues pre- sented in a transaction described in § 332, 351, 368, or 1036. Additionally, the Ser- vice will rule on one or more significant issues under the Code sections that ad- dress the tax consequences (such as non- recognition and basis) that result from the qualification of a transaction under § 332, 351, 368, or 1036. See section 6.03(2) of Rev. Proc. 2023-1, this Bulletin. SIGNIFICANT ISSUE: A significant issue is a germane and specific issue of law, provided that a ruling on the issue would not be a comfort ruling, as defined in section 6.11 of Rev. Proc. 2023-1, or the conclusion in such a ruling otherwise would not be essentially free from doubt. An issue is germane if resolution of the is- sue is necessary to determine an element of the tax treatment of the transaction. An issue is specific if it is the narrowest artic- ulation of the germane issue. A change of circumstances arising after a transaction ordinarily does not present a significant issue with respect to the transaction. OBTAINING A LETTER RULING: To obtain a letter ruling on a significant is- sue presented in a transaction, the taxpay- er in its letter ruling request must comply with all the requirements set forth in sec- tion 6.03(2) of Rev. Proc. 2023-1, as well as Rev. Proc. 2023-1, in general. (61) Section 332. See section 3.01(48), above. (62) Section 351.—See sections 3.01(48) and (60), above. (63) Section 355.—Distribution of Stock and Securities of a Controlled Cor- poration.—Whether the distribution of stock of a controlled corporation will be carried out for one or more corporate busi- ness purposes; whether the transaction will be used principally as a device; and whether the distribution and an acquisi- tion by one or more persons of stock in the distributing corporation or the controlled Bulletin No. 2023–1 149 January 3, 2023 corporation will be parts of a plan (or se- ries of related transactions) under § 355(e) (“§ 355(e) Plan”). Notwithstanding the preceding sentence, the Service will rule with respect to a significant issue, provid- ed the issue is a legal issue and is not in- herently factual in nature, pertaining to (i) the corporate business requirement under § 1.355–2(b), (ii) the device prohibition under § 355(a)(1)(B) and § 1.355–2(d), and (iii) whether the distribution and one or more acquisitions are parts of a § 355(e) Plan, for example the effect of a redemp- tion. The Service will rule with respect to an issue described in clause (iii) of the preceding sentence only if an adverse de- termination on such issue would result in the acquisition by one or more persons of stock representing a 50-percent or great- er interest in the distributing corporation or the controlled corporation as part of a § 355(e) Plan. (64) Section 358.—Basis to Distribu- tees.—The acceptability of an estimation procedure or the acceptability of a specific sampling procedure to determine the ba- sis of stock acquired by an acquiring cor- poration in a reorganization described in § 368(a)(1)(B). (65) Section 368.—See section 3.01(60), above. (66) Section 381.—See section 3.01(38), above. (67) Section 403(b).—Taxability of Beneficiary Under Annuity Purchased by Section 501(c)(3) Organization or Public School.—Whether the form of a plan sat- isfies the requirements of § 403(b) as pro- vided in Rev. Proc. 2023-4, this Bulletin. (68) Section 409A.—Inclusion in Gross Income of Deferred Compensa- tion Under Nonqualified Deferred Com- pensation Plans.—The income tax con- sequences of establishing, operating, or participating in a nonqualified deferred compensation plan within the meaning of § 1.409A-1(a); whether a plan is described in § 1.409A-1(a)(3)(iv) or (v); whether a plan is a bona fide vacation leave, sick leave, or compensatory time plan de- scribed in § 1.409A-1(a)(5); and whether a plan provides for the deferral of com- pensation under § 1.409A-1(b). (69) Section 411(d)(3).—Termination or Partial Termination; Discontinuance of Contributions.—Whether there has been a partial termination of an employee plan. The Service may issue a determination letter involving the partial termination of an employee plan. See Rev. Proc. 2023-4, this Bulletin. (70) Section 414(d).—Governmental Plan.—Whether a plan is a governmental plan under § 414(d). (71) Section 419(e).—Welfare Bene- fit Fund.—Whether a captive insurance arrangement through which an employer provides health insurance to current or re- tired employees is a welfare benefit fund. (72) Section 424.—Definitions and Special Rules.—Whether the substitution of a new Incentive Stock Option (ISO) for an old ISO, or the assumption of an old ISO, by an employer by reason of a corpo- rate transaction constitutes a modification which results in the issuance of a new op- tion by reason of failing to satisfy the spread test requirement of § 424(a)(1) or the ratio test requirement of § 1.425-1(a)(4). The Service will continue to rule on the issue of whether the new ISO or the assumption of the old ISO gives the employee additional benefits not present under the old option within the meaning of § 424(a)(2). (73) Section 451.—General Rule for Taxable Year of Inclusion.—The tax con- sequences of a nonqualified unfunded deferred-compensation arrangement with respect to a controlling shareholder-em- ployee eligible to participate in the ar- rangement. (74) Section 451.—General Rule for Taxable Year of Inclusion.—The tax consequences of nonqualified unfunded deferred-compensation arrangements in which the arrangements fail to meet the requirements of Rev. Proc. 92-65, 1992- 2 C.B. 428, and Rev. Proc. 71-19, 1971-1 C.B. 698. (75) Sections 451 and 457.—General Rule for Taxable Year of Inclusion; Non- qualified Deferred Compensation Plans of State and Local Governments and Tax-Ex- empt Organizations.—The tax conse- quences to unidentified independent con- tractors in nonqualified unfunded deferred compensation plans. This applies to plans established under § 451 by employers in the private sector and to plans of state and local governments and tax-exempt orga- nizations under § 457. However, a ruling with respect to a specific independent con- tractor’s participation in such a plan may be issued. (76) Section 451.—See section 3.01(14), above. (77) Section 453.—See section 3.01(58), above. (78) Section 457.—See section 3.01(75), above. (79) Section 457A.—Nonqualified Deferred Compensation from Certain Tax Indifferent Parties.—The income tax consequences of establishing, operating, or participating in a nonqualified deferred compensation plan within the meaning of § 457A(d)(3). (80) Section 501.—Exemption from Tax on Corporations, Certain Trusts, Etc.—Whether an organization is or con- tinues to be exempt from taxation under § 501(a) as an organization described in §§ 501(c) or 501(d), including, for ex- ample, whether changes in an organiza- tion’s activities or operations will affect or jeopardize the organization’s exempt status. The Associate Chief Counsel (EEE) will rule, however, on specific legal questions related to §§ 501(c) or 501(d) that are not otherwise described in this revenue procedure. For exam- ple, although the Associate Chief Coun- sel (EEE) would not rule on whether a change in a § 501(c)(3) organization’s activities would jeopardize the organi- zation’s exempt status, the Associate Chief Counsel (EEE) would (subject to the limitations described in this revenue procedure) rule on whether such new activities would further an exempt pur- pose described in § 501(c)(3). See Rev. Proc. 2023-5, this Bulletin, for the pro- cedures for issuing determination letters on tax-exempt status under § 501. (81) Sections 501, 511, 512, 513, and 514.—Exemption from Tax on Corpo- rations, Certain Trusts, Etc.; Imposition of Tax on Unrelated Business Income of Charitable, Etc., Organizations; Unrelat- ed Business Taxable Income; Unrelated Trade or Business; Unrelated Debt-Fi- nanced Income.—Whether a joint venture between a tax-exempt organization and a for-profit organization affects an organi- zation’s exempt status, furthers an exempt purpose, or results in unrelated business income. (82) Sections 507, 664, 4941, and 4945.—Termination of Private Founda- tion Status; Charitable Remainder Trusts; Taxes on Self-Dealing; Taxes on Taxable January 3, 2023 150 Bulletin No. 2023–1 Expenditures.—Issues pertaining to the tax consequences of the termination of a charitable remainder trust (as defined in § 664) before the end of the trust term as defined in the trust’s governing instrument in a transaction in which the trust benefi- ciaries receive their actuarial shares of the value of the trust assets. (83) Section 509.—Private Foundation Defined.—Whether an organization is or continues to be described in § 509(a) in- cluding, for example, whether changes in an or ganization’s activities or operations will affect or jeopardize the organiza- tion’s status as a public charity described in § 509(a)(1) - (4). The Associate Chief Counsel (EEE) will rule, however, on spe- cific legal questions related to § 509(a) that are not otherwise described in this revenue procedure. See Rev. Proc. 2023- 5, this Bulletin, for the procedures for obtaining determination letters on public charity status under § 509. (84) Sections 511, 512, 513, and 514.—Imposition of Tax on Unrelated Business Income of Charitable, Etc., Or- ganizations; Unrelated Business Taxable Income; Unrelated Trade or Business; Un- related Debt-Financed Income.—Whether unrelated business income tax issues arise when charitable lead trust assets are in- vested with charitable organizations. (85) Sections 511, 512, 513, and 514.— See section 3.01(81), above. (86) Section 529.—Qualified Tuition Programs.—Whether a state-run tuition program qualifies under § 529. (87) Sections 542, 543, and 544.— Definition of Personal Holding Com- pany; Personal Holding Company In- come; Rules for Determining Stock Ownership.—Whether the application of § 544(a) causes a corporation to meet the stock ownership requirements under § 542(a)(2), § 543(a)(4), § 543(a)(6), or § 543(a)(7). (88) Section 641.—Imposition of Tax.—Whether the period of administra- tion or settlement of an estate or a trust (other than a trust described in § 664) is reasonable or unduly prolonged. (89) Section 642(c).—Deduction for Amounts Paid or Permanently Set Aside for a Charitable Purpose.—Allowance of an unlimited deduction for amounts set aside by a trust or estate for charitable purposes when there is a possibility that the corpus of the trust or estate may be in- vaded. (90) Section 643(f).—Treatment of multiple trusts.—Whether two or more trusts shall be treated as one trust for pur- poses of subchapter J of chapter 1. (91) Section 664.—Charitable Re- mainder Trusts.—Whether the settlement of a charitable remainder trust upon the termination of the noncharitable interest is made within a reasonable period of time. (92) Section 664.—See section 3.01(82), above. (93) Section 671.—Trust Income, Deductions, and Credits Attributable to Grantors and Others as Substantial Own- ers.—Whether the grantor will be consid- ered the owner of any portion of a trust when (i) substantially all of the trust cor- pus consists or will consist of insurance policies on the life of the grantor or the grantor’s spouse, (ii) the trustee or any other person has a power to apply the trust’s income or corpus to the payment of premiums on policies of insurance on the life of the grantor or the grantor’s spouse, (iii) the trustee or any other person has a power to use the trust’s assets to make loans to the grantor’s estate or to purchase assets from the grantor’s estate, and (iv) there is a right or power in any person that would cause the grantor to be treated as the owner of all or a portion of the trust under §§ 673 to 677. (94) Section 704(b).—Determination of Distributive Share.—Whether the allo- cation to a partner under the partnership agreement of income, gain, loss, deduc- tion, or credit (or an item thereof) has substantial economic effect or is in ac- cordance with the partner’s interest in the partnership. (95) Section 761.—Terms Defined.— Matters relating to the validity of a part- nership or whether a person is a partner in a partnership. (96) Section 761.—See section 3.01(19), above. (97) Section 856.—Definition of Real Estate Investment Trust.—Whether a cor- poration whose stock is “paired” with or “stapled” to stock of another corporation will qualify as a real estate investment trust under § 856, if the activities of the corporations are integrated. (98) Section 1001.—Determination of Amount of and Recognition of Gain or Loss.—Whether the termination of a char- itable remainder trust before the end of the trust term as defined in the trust’s govern- ing instrument, in a transaction in which the trust beneficiaries receive their actuar- ial shares of the value of the trust assets, is treated as a sale or other disposition by the beneficiaries of their interests in the trust. (99) Sections 1001 and 1058.—Deter- mination of Amount of and Recognition of Gain or Loss; Transfers of Securities Under Certain Agreements.—Whether a taxpayer recognizes gain or loss on the transfer of virtual currency in exchange for a contractual obligation that requires the return of identical virtual currency to the taxpayer or on the transfer of identical virtual currency to the taxpayer in satis- faction of the contractual obligation. (100) Section 1001.—See section 3.01(13) and (14), above. (101) Section 1033.—Involuntary Conversions.—Whether the replacement or proposed replacement of compulsorily or involuntarily converted property does or does not qualify under § 1033(a), if the taxpayer has already filed a Federal tax re- turn for the first taxable year in which any of the gain was realized from the convert- ed property. The Service may issue a de- termination letter in this case. See section 12.01 of Rev. Proc. 2023-1, this Bulletin. (102) Section 1036.—See section 3.01(60), above. (103) Section 1058.—See section 3.01(99), above. (104) Section 1221.—Capital Asset Defined.—Whether specialty stock allo- cated to an investment account by a reg- istered specialist on a national securities exchange is a capital asset. (105) Section 1221.—Capital Asset Defined.—Whether the termination of a charitable remainder trust before the end of the trust term as defined in the trust’s governing instrument, in a transaction in which the trust beneficiaries receive their actuarial shares of the value of the trust as- sets, is treated as a sale or exchange of a capital asset by the beneficiaries. (106) Section 1239.—See section 3.01(58), above. (107) Section 1361.—S Corporation Defined.—Whether a state law limited partnership electing under § 301.7701-3 to be classified as an association taxable as a corporation has more than one class Bulletin No. 2023–1 151 January 3, 2023 of stock for purposes of § 1361(b)(1)(D). The Service will treat any request for a ruling on whether a state law limited part- nership is eligible to elect S corporation status as a request for a ruling on whether the partnership complies with § 1361(b) (1)(D). (108) Section 1362(f).—Inadvertent Invalid Elections or Terminations.—Prin- cipal purpose determinations regarding the one class of stock requirement.— Ad- dressing the validity or continuation of an S election in situations regarding the one class of stock requirement that require a determination of the existence of a princi- pal purpose because such a determination is inherently factual in nature. See section 6.02 of Rev. Proc. 2023-1 (or any succes- sor revenue procedure). Accordingly, the IRS will not issue a PLR under § 1362(f) addressing: (a) For purposes of deter- mining whether all outstanding shares of stock confer identical rights to distribution and liquidation proceeds under § 1.1361- 1(l)(2), whether a principal purpose of a commercial contractual agreement, buy- sell agreement, an agreement restricting the transferability of stock, or a redemp- tion agreement is to circumvent the one class of stock requirement of § 1361(b)(1) (D) and § 1.1361-1(l) (see § 1.1361-1(l) (2)(i) and (iii)(A)(1)); or (b) For purpos- es of determining whether an instrument, obligation, or arrangement is treated as a second class of stock, whether: (i) A prin- cipal purpose of issuing or entering into an instrument, obligation, or arrangement is to circumvent the rights to distribu- tion or liquidation proceeds conferred by the outstanding shares of stock or to cir- cumvent the limitation on eligible share- holders contained in § 1.1361-1(b)(1) (see § 1.1361-1(l)(4)(ii)(A)(2)); or (ii) A principal purpose of an unwritten advance or proportionately held obligation is to circumvent the rights of the outstanding shares of stock or the limitation on eligible shareholders under § 1.1361-1(l)(4)(ii)(A) (2) (see § 1.1361-1(l)(4)(ii)(B)). (109) Section 1362(f).—Inadvertent Invalid Elections or Terminations.— Certain inadvertent errors, omissions, or missing signatures.—Addressing the va- lidity or continuation of an S election or a QSub election: (a) Determinations of the validity or continuation of an S elec- tion with regard to one or more dispropor- tionate distributions (as defined in section 2.03(2) of Rev. Proc. 2019-22) if the gov- erning provisions confer identical rights to distribution and liquidation proceeds. See § 1.1361-1(l)(1) and (2); (b) Whether a missing administrative letter from the IRS accepting an election for a corporation to be an S corporation or accepting an elec- tion for a corporation to be a QSub affects the validity or continuation of the elec- tion; (c) Whether the filing of a Federal income tax return that is inconsistent with a corporation’s status as an S corporation or a QSub affects the validity or continua- tion of the S election or QSub election (as appropriate). (110) Section 1502. Regulations. If a member of an affiliated group fails to file Form 1122 or fails to join in the making of a consolidated return due to a mistake of law or fact, or inadvertence, whether such mem- ber will be treated as if it had filed a Form 1122. The Service may issue a determina- tion letter in this case. See section 12.01 of Rev. Proc. 2023-1, this Bulletin. But see also section 6.07 of this revenue procedure. (111) Section 1502. See sections 3.01(38) and (48), above. (112) Section 1551.—Disallowance of the Benefits of the Graduated Corporate Rates and Accumulated Earnings Cred- it.—Whether a transfer is within § 1551. (113) Section 2031.—Definition of Gross Estate.—Actuarial factors for valu- ing interests in the prospective gross es- tate of a living person. (114) Section 2055.—Transfers for Public, Charitable, and Religious Uses.— Whether a charitable contribution deduc- tion under § 2055 is allowed for the trans- fer of an interest in a limited partnership or a limited liability company taxed as a partnership to an organization described in § 2055(a). (115) Section 2512.—Valuation of Gifts.—Actuarial factors for valuing pro- spective or hypothetical gifts of a donor. (116) Section 2522.—Charitable and Similar Gifts.—Whether a charitable contribution deduction under § 2522 is allowable for a transfer of an interest in a limited partnership or a limited liability company taxed as a partnership to an or- ganization described in § 2522(a). (117) Section 2601.—Tax Imposed.— Whether a trust exempt from genera- tion-skipping transfer (GST) tax under § 26.2601-1(b)(1), (2), or (3) of the Gener- ation-Skipping Transfer Tax Regulations will retain its GST exempt status when there is a modification of a trust, change in the administration of a trust, or a distribu- tion from a trust in a factual scenario that is similar to a factual scenario set forth in one or more of the examples contained in § 26.2601-1(b)(4)(i)(E). (118) Sections 3121, 3306, and 3401.—Definitions.—For purposes of de- termining prospective employment status, whether an individual will be an employ- ee or an independent contractor. A ruling with regard to prior employment status may be issued. (119) Sections 3121, 3306, and 3401.—Definitions.—Who is the employ- er of an “employee-owner” as defined in § 269A(b)(2). (120) Sections 3121, 3306, and 3401.—Definitions.—For purposes of de- termining worker classification pursuant to the filing of Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax With- holding, whether a worker is a bona fide partner and, therefore, not an employee of the business. (121) Sections 3121 and 3401.—Defi- nitions.— For purposes of determining worker classification pursuant to the filing of Form SS-8, Determination of Worker Status for Purposes of Federal Employ- ment Taxes and Income Tax Withhold- ing, whether a state or local government worker who may be performing services under an agreement entered into pursuant to Section 218 of the Social Security Act is an employee or independent contractor for federal employment tax purposes. (122) Section 4041.—See section 3.01(1), above. (123) Section 4052(f)(1).—Certain Repairs and Modifications Not Treated as Manufacture.—Whether a chassis re- paired or modified using a “glider kit” is treated as manufactured or produced if the cost of the repairs or modifications does not exceed 75 percent of the retail price of a comparable new chassis. (124) Section 4081.—See section 3.01(1), above. (125) Section 4083.—See section 3.01(1), above. (126) Section 4191. Medical Devic- es. Whether a device (as defined in sec- January 3, 2023 152 Bulletin No. 2023–1 tion 201(h) of the Federal Food, Drug, and Cosmetic Act) intended for humans is not a “taxable medical device” within the meaning of § 4191(b)(1) due to the application of the exemption provided in § 4191(b)(2) for eyeglasses, contact lens- es, hearing aids, and any other medical de- vice determined by the Secretary to be of a type which is generally purchased by the general public at retail for individual use. (127) Section 4216(b).—Constructive Sale Price.—Whether a particular meth- odology for determining the tax base is al- lowable under the constructive sale price rules. (128) Section 4671.—Imposition of Tax on Imported Substances.—Whether the amount of tax or tax rate for a particu- lar substance is correct. (129) Sections 4940 and 4942.—Ex- cise Tax Based on Investment Income; Taxes on Failure to Distribute Income.— Whether an organization is or continues to be an “operating foundation” described in § 4942(j)(3) or an “exempt operating foundation” described in § 4940(d)(2), in- cluding, for example, whether changes in an organization’s activities or operations will affect or jeopardize the organization’s status as an operating foundation or ex- empt operating foundation. The Associate Chief Counsel (EEE) will rule, howev- er, on specific legal questions related to §§ 4940(d)(2) or 4942(j)(3) that are not otherwise described in this revenue proce- dure. See Rev. Proc. 2023-5, this Bulletin, for the procedures for obtaining determi- nation letters on foundation status under §§ 4940 and 4942. (130) Section 4941.—Taxes on Self-Dealing.—Whether transactions during the administration of an estate or trust meet the requirements of the excep- tion to § 4941 set forth in § 53.4941(d)- 1(b)(3) of the Private Foundation Excise Tax Regulations, in cases in which a dis- qualified person issues a promissory note in exchange for property of an estate or trust. (131) Section 4941.—Taxes on Self-Dealing.—Whether an act of self-dealing occurs when a private foun- dation (or other entity subject to § 4941) owns or receives an interest in a limited liability company or other entity that owns a promissory note issued by a disqualified person. (132) Section 4941.—See section 3.01(82), above. (133) Section 4942.—See section 3.01(129), above. (134) Section 4945.—See section 3.01(82), above. (135) Section 4958.—Taxes on Excess Benefit Transactions.—Whether a com- pensation or property transaction satisfies the rebuttable presumption that the trans- action is not an excess benefit transaction as described in § 53.4958-6 of the Excess Benefit Transactions Excise Tax Regula- tions. (136) Section 4975(d).—Exemp- tions.—Whether the renewal, extension, or refinancing of an exempt loan satisfies the requirements of § 4975(d)(3). Also, whether the pre-payment of employee stock ownership plan (ESOP) loans satis- fies the requirements of § 4975(d)(3) other than with respect to plan termination. (137) Section 4976(b)(1)(C).—Dis- qualified Benefit.—Whether a transfer of assets between welfare benefit funds (in- cluding VEBAs), or a new or different use of assets of a welfare benefit fund (includ- ing a VEBA), results in a reversion to the employer. (138) Section 4980.—Tax on Rever- sion of Qualified Plan Assets to Em- ployer.—Whether an employer reversion from a qualified plan occurs for purpos- es of § 4980(c)(2) in connection with a transaction in which (1) less than 100 percent of the assets of a defined benefit plan are spun off to another defined ben- efit plan sponsored or maintained by the same employer (or any entity that would be considered to be in a group of em- ployers treated as a single employer with the employer under § 414(b), (c), (m), or (o)); (2) the defined benefit plan receiv- ing the assets that have been spun off is terminated within a short period of time after receiving those assets; and (3) as- sets remain in the trust of the terminated defined benefit plan after all benefits are distributed to or on behalf of all partici- pants and their beneficiaries. (139) Section 4980B.—Failure to Sat- isfy Continuation Coverage Requirements of Group Health Plans.—Whether an action is “gross misconduct” within the meaning of § 4980B(f)(3)(B). (See sec- tion 3.05 of Rev. Proc. 87-28, 1987-1 C.B. 770, 771.) (140) Section 4980H.—Shared Re- sponsibility for Employers Regarding Health Coverage.—Whether an employer is required to make an assessable payment under § 4980H(a) or (b). (141) Section 6050P.—Returns Relat- ing to the Cancellation of Indebtedness by Certain Entities.—Requests for a ruling that the creditor is not required to report a discharge that include as grounds for the request a dispute regarding the underlying liability. (142) Section 6050P.—Returns Relat- ing to the Cancellation of Indebtedness by Certain Entities.—Whether amounts reduced pursuant to the terms of a debt in- strument are reportable under § 6050P and the regulations. (143) Section 6050P.—Returns Relat- ing to the Cancellation of Indebtedness by Certain Entities.—Whether amounts discharged in a nonlending transaction are reportable under § 6050P and the regula- tions. (144) Section 6166.—Extension of Time for Payment of Estate Tax Where Estate Consists Largely of Interest in Closely Held Business.—Requests in- volving § 6166 if there is no decedent. (145) Section 6426.—See section 3.01(1), above. (146) Section 6901.—Transferred As- sets.—Whether a taxpayer is liable for tax as a transferee. (147) Section 7216.—Disclosure or Use of Information by Preparers of Re- turns.—Whether a criminal penalty is ap- plicable for any disclosure or use of infor- mation by preparers of returns. (148) Section 7701.—Definitions.— The classification of an instrument that has certain voting and liquidation rights in an issuing corporation but whose div- idend rights are determined by reference to the earnings of a segregated portion of the issuing corporation’s assets, including assets held by a subsidiary. (149) Section 7701.—Definitions.— The classification for Federal tax purposes of a fideicomiso or other land trust created under local law, applying the principles of Rev. Rul. 2013-14, 2013-26 I.R.B. 1267, or Rev. Rul. 92-105, 1992-2 C.B. 204. (150) Section 7701.—See section 3.01(19), above. (151) Section 7704.—Certain Publicly Traded Partnerships Treated as Corpo- Bulletin No. 2023–1 153 January 3, 2023 rations.—Whether interests in a partner- ship that are not traded on an established securities market (within the meaning of § 7704(b) and § 1.7704-1(b) of the Pro- cedure and Administration Regulations) are readily tradable on a secondary mar- ket or the substantial equivalent thereof under § 1.7704-1(c)(1). This specifically includes, but is not limited to, whether an investment fund or portfolio support- ing variable contract arrangements of life insurance companies is a publicly traded partnership. (152) Section 9815.—Additional Mar- ket Reforms.—Whether an insured group health plan satisfies the requirements of § 2716 of the Public Health Service Act, Prohibition on Discrimination in Favor of Highly Compensated Individuals, as in- corporated into the Code by § 9815. .02 General Areas. (1) Whether the economic substance doctrine is relevant to any transaction or whether any transaction complies with the requirements of § 7701(o). (2) The results of transactions that lack a bona fide business purpose or have as their principal purpose the reduction of Federal taxes. (3) A matter upon which a court deci- sion adverse to the Government has been handed down and the question of follow- ing the decision or litigating further has not yet been resolved. (4) A matter involving alternate plans of proposed transactions or involving hy- pothetical situations. (5) Whether under Subtitle F (Pro- cedure and Administration) reasonable cause, due diligence, good faith, clear and convincing evidence, or other similar terms that require a factual determination exist. (6) A matter involving the regulations governing practice before the Service un- der 31 CFR Part 10 (reprinted as Treasury Department Circular No. 230). (7) Whether a proposed transaction would subject the taxpayer to a criminal penalty. (8) Whether a completed transaction can be rescinded for Federal income tax purposes. (9) The income tax (including unrelat- ed business income tax) or excise tax con- sequences of the contribution of stock op- tions to, or their subsequent exercise from, plans described in Part 1 of Subchapter D of Chapter 1 of Subtitle A of the Code. (10) Questions that the Service deter- mines, in its discretion, should not be an- swered in the general interests of sound tax administration, including due to re- source constraints. (11) Any frivolous issue, as that term is defined in section 6.10 of Rev. Proc. 2023- 1, this Bulletin. (12) A request that does not comply with the provisions of Rev. Proc. 2023-1, this Bulletin. SECTION 4. AREAS IN WHICH RULINGS OR DETERMINATION LETTERS WILL NOT ORDINARILY BE ISSUED .01 Specific Questions and Problems. (1) Sections 38, 39, 46, and 48.—Gen- eral Business Credit; Carryback and Car- ryforward of Unused Credits; Amount of Credit; Energy Credit.—Application of these sections if the formal ownership of property is in a party other than the tax- payer, except when title is held merely as security. (2) Section 61.—Gross Income De- fined.—Determination as to who is the true owner of property in cases involv- ing the sale of securities, or participation interests therein, if the purchaser has the contractual right to cause the securities, or participation interests therein, to be pur- chased by either the seller or a third party. (3) Sections 61 and 163.—Gross In- come Defined; Interest.—Determinations as to who is the true owner of property or the true borrower of money in cases in which the formal ownership of the proper- ty, or the liability for the indebtedness, is in another party. (4) Section 62(c).—Certain Arrange- ments Not Treated as Reimbursement Arrangements.—Whether amounts relat- ed to a salary reduction and paid under a purported reimbursement or other expense allowance arrangement will be treated as paid under an “accountable plan” in ac- cordance with § 1.62-2(c)(2). (5) Sections 83 and 451.—Proper- ty Transferred in Connection with Per- formance of Services; General Rule for Taxable Year of Inclusion.—When com- pensation is realized by a person who, in connection with the performance of services, is granted a nonstatutory option without a readily ascertainable fair market value to purchase stock at a price that is less than the fair market value of the stock on the date the option is granted. (6) Sections 101 and 7702.—Certain Death Benefits; Life Insurance Contract Defined.—Whether amounts received under an arrangement with an entity that is not regulated as an insurance company may be treated as received under a “life insurance contract” within the meaning of §§ 101(a) and 7702. (7) Section 103.—Interest on State and Local Bonds.—Whether the interest on state or local bonds will be excludible from gross income under § 103(a), if the proceeds of issues of bonds (other than advance refunding issues) are placed in escrow or otherwise not expended for a governmental purpose for an extended pe- riod of time even though the proceeds are invested at a yield that will not exceed the yield on the state or local bonds prior to their expenditure. (8) Section 141.—Private Activity Bond; Qualified Bond.—Whether state or local bonds will meet the “private business use test” and the “private secu- rity or payment test” under § 141(b)(1) and (2) in situations in which the pro- ceeds are used to finance certain output facilities and, pursuant to a contract to take, or take or pay for, a nongovernmen- tal person purchases 30 percent or more of the actual output of the facility but 10 percent or less of the available output of the facility as defined in § 1.141-7(b)(1). In similar situations, the Service will not ordinarily issue rulings concerning ques- tions arising under paragraphs (3), (4), and (5) of § 141(b). (9) Sections 142 and 144(a).—Ex- empt Facility Bond; Qualified Small Issue Bond.—Whether an issue of private activ- ity bonds meets the requirements of § 142 or § 144(a), if the sum of— (i) the portion of the proceeds used to finance a facility in which an owner (or re- lated person) or a lessee (or a related per- son) is a user of the facility both after the bonds are issued and at any time before the bonds were issued, and (ii) the portion used to pay issuance costs and nonqualified costs equals more than 5 percent of the net proceeds, as de- fined in § 150(a)(3). January 3, 2023 154 Bulletin No. 2023–1 (10) Sections 162 and 262.—Trade or Business Expenses; Personal, Living, and Family Expenses.—Whether expenses are nondeductible commuting expenses, ex- cept for situations governed by Rev. Rul. 99-7, 1999-1 C.B. 361. (11) Section 162(m).—Certain Exces- sive Employee Remuneration.—Whether the deduction limit under § 162(m) ap- plies to compensation attributable to ser- vices performed for a related partnership. (12) Section 163.—See section 4.01(3), above. (13) Section 165.—Losses.—Wheth- er stock in a corporation has been aban- doned. (14) Section 167.—Depreciation. (i) Useful lives of assets. (ii) Depreciation rates. (iii) Salvage value of assets. (15) Sections 167 and 168.—Depre- ciation; Accelerated Cost Recovery Sys- tem.—Application of those sections in which the formal ownership of property is in a party other than the taxpayer except when title is held merely as security. (16) Section 170.—Charitable, Etc., Contributions and Gifts.—Whether a transfer to a pooled income fund described in § 642(c)(5) qualifies for a charitable contribution deduction under § 170(f)(2) (A). (17) Section 170.—Charitable, Etc., Contributions and Gifts.—Whether a transfer to a charitable remainder trust described in § 664 that provides for an- nuity or unitrust payments for one or two measuring lives qualifies for a charitable deduction under § 170(f)(2)(A). (18) Section 170.—Charitable, Etc., Contributions and Gifts.—Whether a tax- payer who transfers property to a charita- ble organization and thereafter leases back all or a portion of the transferred property may deduct the fair market value of the property transferred and leased back as a charitable contribution. (19) Section 199A.—Qualified Busi- ness Income.—Whether a taxpayer or rel- evant passthrough entity is engaged in a specified service trade or business. (20) Section 216.—Deduction of Tax- es, Interest, and Business Depreciation by Cooperative Housing Corporation Tenant-Stockholder.—If a cooperative housing corporation (CHC), as defined in § 216(b)(1), transfers an interest in real property to a corporation (not a CHC) in exchange for stock or securities of the transferee corporation, which engages in commercial activity with respect to the real property interest transferred, whether (i) the income of the transferee corpora- tion derived from the commercial activity and (ii) any cash or property (attributable to the real property interest transferred) distributed by the transferee corporation to the CHC will be considered as gross in- come of the CHC for the purpose of deter- mining whether 80 percent or more of the gross income of the CHC is derived from tenant-stockholders within the meaning of § 216(b)(1)(D). (21) Section 262.—See section 4.01(10), above. (22) Section 265(a)(2).—Interest.— Whether indebtedness is incurred or con- tinued to purchase or carry obligations the interest on which is wholly exempt from the taxes imposed by Subtitle A. (23) Section 302.—Distributions in Redemption of Stock.—The tax effect of the redemption of stock for notes, when the payments on the notes are to be made over a period in excess of 15 years from the date of issuance of such notes. (24) Section 302(b)(4) and (e).—Re- demption from Noncorporate Shareholder in Partial Liquidation; Partial Liquidation Defined.—Whether a distribution will qualify as a distribution in partial liqui- dation under § 302(b)(4) and (e)(1)(A), unless it results in a 20 percent or greater reduction in (i) gross revenue, (ii) net fair market value of assets, and (iii) employ- ees. (Partial liquidations that qualify as § 302(e)(2) business terminations are not subject to this provision.) (25) Section 306.—Dispositions of Certain Stock.—Whether the distribution, disposition, or redemption of “section 306 stock” in a closely held corporation is in pursuance of a plan having as one of its principal purposes the avoidance of Fed- eral income taxes within the meaning of § 306(b)(4). (26) Sections 331 and 346(a).—Gain or Loss to Shareholders in Corporate Liq- uidations; Complete Liquidation.—The tax effect of the liquidation of a corpora- tion by a series of distributions when the distributions in liquidation are to be made over a period in excess of 3 years from the adoption of the plan of liquidation. (27) Section 351.—Transfer to Cor- poration Controlled by Transferor.— Whether § 351 applies to the transfer of an interest in real property by a coopera- tive housing corporation (as described in § 216(b)(1)) to a corporation in exchange for stock or securities of the transferee corporation, if the transferee engages in commercial activity with respect to the real property interest transferred. (28) Section 355.—Distribution of Stock and Securities of a Controlled Cor- poration.—Whether the active business requirement of § 355(b) is met when, within the 5-year period described in § 355(b)(2)(B), a distributing corporation acquired control of a controlled corpora- tion as a result of the distributing corpora- tion transferring cash or other liquid or in- active assets to the controlled corporation in a transaction in which gain or loss was not recognized as a result of the transfer meeting the requirements of § 351(a) or § 368(a)(1)(D). (29) Section 355.—Distribution of Stock and Securities of a Controlled Corporation.—Any issue relating to the qualification, under § 355 and related provisions, of a distribution, or anoth- er distribution which is part of the same plan or series of related transactions, if, immediately after any such distribution, the fair market value of the gross assets of the trade(s) or business(es) on which the distributing corporation or the controlled corporation relies to satisfy the active trade or business requirement of § 355(b) is less than five percent of the fair market value of the total gross assets of such cor- poration. For purposes of determining the fair market value of the total gross assets of such corporation and of the gross assets of such trade(s) or business(es), (i) all mem- bers of a separate affiliated group, within the meaning of § 355(b)(3)(B), are treated as one corporation; and (ii) if the distrib- uting corporation or the controlled corpo- ration relies on an active trade or business of a partnership for purposes of § 355(b), such corporation is treated as owning its ratable share of the gross assets of the partnership. This section 4.01(29) does not apply if (i) all the stock of the controlled corpora- tion that is distributed in the distribution is distributed to one or more members of the Bulletin No. 2023–1 155 January 3, 2023 affiliated group, as defined in § 243(b)(2) (A), of which the distributing corporation is a member; and (ii) such distribution is not part of a plan or series of related trans- actions pursuant to which stock of any corporation will be distributed outside such affiliated group in a distribution de- scribed in this section 4.01(29) or section 5.01(3) of this revenue procedure. See also, section 6.03(2)(b), Rev. Proc. 2023- 1, this Bulletin. (30) Section 355.—Distribution of Stock and Securities of a Controlled Cor- poration.—Any issue under § 355(e) other than whether a distribution and an acqui- sition are part of a plan (i.e., any non-plan issue). Notwithstanding the preceding sentence, the Service generally will rule on a non-plan issue or issues (e.g., wheth- er a corporation constitutes a predecessor of distributing) if an adverse ruling on such non-plan issue or issues would result in there being a direct or indirect acquisi- tion by one or more persons of stock rep- resenting a 50-percent or greater interest in the distributing corporation or the con- trolled corporation that is part of a plan under § 355(e). (31) Section 441(i).—Taxable Year of Personal Service Corporations.—Wheth- er the principal activity of the taxpayer during the testing period for the taxable year is the performance of personal ser- vices within the meaning of § 1.441-3(c) (1)(iii). (32) Section 448(d)(2)(A).—Limita- tion on Use of Cash Method of Account- ing; Qualified Personal Service Corpora- tion.—Whether 95 percent or more of the time spent by employees of the corpora- tion, serving in their capacity as such, is devoted to the performance of services within the meaning of § 1.448-1T(e)(4)(i). (33) Section 451.—General Rule for Taxable Year of Inclusion.—The tax con- sequences of a nonqualified deferred com- pensation arrangement using a grantor trust if the trust fails to meet the require- ments of Rev. Proc. 92-64, 1992-2 C.B. 422. (34) Section 451.—General Rule for Taxable Year of Inclusion.—The income tax consequences as a result of being a beneficiary of a trust that an Indian tribe (as defined in 25 U.S.C. § 2703(5)) es- tablishes to receive and invest per capita payments for its members under the In- dian Gaming Regulatory Act (25 U.S.C. §§ 2701 through 2721). (35) Section 451.—See section 4.01(5), above. (36) Section 584.—Common Trust Funds.—Whether a common trust fund plan meets the requirements of § 584. (For § 584 plan drafting guidance, see Rev. Proc. 92-51, 1992-1 C.B. 988.) (37) Section 642.—Special Rules for Credits and Deductions.—Whether a pooled income fund satisfies the require- ments described in § 642(c)(5). (38) Section 664.—Charitable Re- mainder Trusts.—Whether a charitable remainder trust that provides for annu- ity or unitrust payments for one or two measuring lives or for annuity or unitrust payments for a term of years satisfies the requirements described in § 664. (39) Section 664.—Charitable Re- mainder Trusts.—Whether a trust that will calculate the unitrust amount under § 664(d)(3) qualifies as a § 664 charitable remainder trust when a grantor, a trustee, a beneficiary, or a person related or subordi- nate to a grantor, a trustee, or a beneficiary can control the timing of the trust’s receipt of trust income from a partnership or a de- ferred annuity contract to take advantage of the difference between trust income under § 643(b) and income for Federal in- come tax purposes for the benefit of the unitrust recipient. (40) Sections 671 to 679.—Grant- ors and Others Treated as Substantial Owners.—In a nonqualified, unfunded deferred compensation arrangement de- scribed in Rev. Proc. 92-64, 1992-2 C.B. 422, the tax consequences of the use of a trust, other than the model trust described in that revenue procedure. (41) Sections 671 to 679.—Grantors and Others Treated as Substantial Own- ers.—Whether an Indian tribe (as defined in 25 U.S.C. § 2703(5)) that establishes a trust to receive and invest per capita payments for its members under the In- dian Gaming Regulatory Act (25 U.S.C. §§ 2701-2721) is the grantor and owner of the trust. (42) Section 678. Person Other than Grantor Treated as Substantial Owner. Whether a person will be treated as the owner of any portion of a trust over which that person has a power to withdraw the trust property (or had such power prior to a release or modification, but retains other powers which would cause that person to be the owner of the trust under § 671 if the person were the grantor), other than a power which would constitute a general power of appointment within the mean- ing of § 2041, if the trust purchases the property from that person with a note and the value of the assets with which the trust was funded by the grantor is nomi- nal compared to the value of the property purchased. (43) Section 679.—See sections 4.01(40) and 4.01(41), above. (44) Section 851.—Definition of Reg- ulated Investment Company.—Any issue relating to the treatment of a corporation as a regulated investment company under § 851 and related provisions that requires a determination whether a financial instru- ment or position is a security as defined in the Investment Company Act of 1940. (45) Section 856. Definition of Real Estate Investment Trust. Whether an out- door advertising display constitutes real property for purposes of § 856. However, if the real estate investment trust has made an election under § 1.1033(g)-1(b), the Service may rule on whether an asset that is not within the scope of the election, but is related to the outdoor advertising dis- play, constitutes real property for purposes of § 856. (46) Section 1031(f).—Special Rules for Exchanges Between Related Per- sons.—Except in the case of (i) a transac- tion involving an exchange of undivided interests in different properties that results in each taxpayer holding either the entire interest in a single property or a larger un- divided interest in any of the properties or (ii) a disposition of property in a non- recognition transaction in which the tax- payer or the related party receives no cash or other property that results in gain rec- ognition, whether an exchange described in § 1031(f) involving related parties, or a subsequent disposition of property in- volved in the exchange, has as one of its principal purposes the avoidance of Fed- eral income tax, or is part of a transaction (or series of transactions) structured to avoid the purposes of § 1031(f). (47) Section 1362.—Election; Revo- cation; Termination.—All situations in which the Service has provided an auto- matic approval procedure or administra- January 3, 2023 156 Bulletin No. 2023–1 tive procedure for an S corporation or its shareholders to obtain the following: (i) Relief for late S corporation elections, qualified subchapter S subsidiary elec- tions, qualified subchapter S trust elec- tions, or electing small business trust elections, see Rev. Proc. 2013-30, 2013- 36 I.R.B. 173 (For instructions on how to seek this relief, see Rev. Proc. 2013-30.); or (ii) Retroactive corrective relief regard- ing non-identical governing provisions for S corporations meeting the eligibility requirements of Rev. Proc. 2022-19, sec- tion 3.06(2)(b) (For instructions on how to seek this relief, see Rev. Proc. 2022-19, section 3.06). (48) Section 1362(f).—Inadvertent In- valid Elections or Terminations.—Certain inadvertent errors, omissions, or missing signatures.—Except with regard to an inadvertent error relating to a “permitted year” (as defined in § 1378(b) and § 1.1378 1), the absence of a required shareholder consent, or an officer signature for which there is no other relief as provided in Rev. Proc. 2022-19, section 3.03, the IRS will not issue a PLR under § 1362(f) address- ing whether an inadvertent error or omis- sion, or a missing required consent or signature (see § 1362(a)(2), § 1.1361-3(a) (2), and § 1.1362-6(a)(1)), on Form 2553 or Form 8869 affects the validity of the S election or QSub election. (49) Section 1502.—Regulations.— Whether a parent cooperative housing cor- poration (as defined in § 216(b)(1)) will be permitted to file a consolidated income tax return with its transferee subsidiary, if the transferee engages in commercial activity with respect to the real property interest transferred to it by the parent. (50) Sections 2035, 2036, 2037, 2038, and 2042. Adjustments for Certain Gifts Made Within Three Years of Decedent’s Death; Transfers with Retained Life Es- tate; Transfers Taking Effect at Death; Revocable Transfers; Proceeds of Life Insurance. Whether trust assets are inclu- dible in a trust beneficiary’s gross estate under § 2035, 2036, 2037, 2038, or 2042 if the beneficiary sells property (includ- ing insurance policies) to the trust or dies within 3 years of selling such property to the trust, and (i) the beneficiary has a power to withdraw the trust property (or had such power prior to a release or mod- ification, but retains other powers which would cause that person to be the owner if the person were the grantor), other than a power which would constitute a general power of appointment within the mean- ing of § 2041, (ii) the trust purchases the property with a note, and (iii) the value of the assets with which the trust was funded by the grantor is nominal compared to the value of the property purchased. (51) Section 2055.—Transfers for Public, Charitable, and Religious Uses.— Whether a transfer to a pooled income fund described in § 642(c)(5) qualifies for a charitable deduction under § 2055(e)(2) (A). (52) Section 2055.—Transfers for Public, Charitable, and Religious Uses.— Whether a transfer to a charitable remain- der trust described in § 664 that provides for annuity or unitrust payments for one or two measuring lives or a term of years qualifies for a charitable deduction under § 2055(e)(2)(A). (53) Section 2501. Imposition of Tax. Whether the sale of property (including insurance policies) to a trust by a trust beneficiary will be treated as a gift for pur- poses of § 2501 if (i) the beneficiary has a power to withdraw the trust property (or had such power prior to a release or mod- ification, but retains other powers which would cause that person to be the owner if the person were the grantor), other than a power which would constitute a general power of appointment within the mean- ing of § 2041, (ii) the trust purchases the property with a note, and (iii) the value of the assets with which the trust was funded by the grantor is nominal compared to the value of the property purchased. (54) Section 2503.—Taxable Gifts.— Whether the transfer of property to a trust will be a gift of a present interest in prop- erty when (i) the trust corpus consists or will consist substantially of insurance policies on the life of the grantor or the grantor’s spouse, (ii) the trustee or any other person has a power to apply the trust’s income or corpus to the payment of premiums on policies of insurance on the life of the grantor or the grantor’s spouse, (iii) the trustee or any other person has a power to use the trust’s assets to make loans to the grantor’s estate or to purchase assets from the grantor’s estate, (iv) the trust beneficiaries have the power to with- draw, on demand, any additional transfers made to the trust, and (v) there is a right or power in any person that would cause the grantor to be treated as the owner of all or a portion of the trust under §§ 673 to 677. (55) Section 2514.—Powers of Ap- pointment.—If the beneficiaries of a trust permit a power of withdrawal to lapse, whether § 2514(e) will be applicable to each beneficiary in regard to the power when (i) the trust corpus consists or will consist substantially of insurance policies on the life of the grantor or the grantor’s spouse, (ii) the trustee or any other person has a power to apply the trust’s income or corpus to the payment of premiums on policies of insurance on the life of the grantor or the grantor’s spouse, (iii) the trustee or any other person has a power to use the trust’s assets to make loans to the grantor’s estate or to purchase assets from the grantor’s estate, (iv) the trust benefi- ciaries have the power to withdraw, on de- mand, any additional transfers made to the trust, and (v) there is a right or power in any person that would cause the grantor to be treated as the owner of all or a portion of the trust under §§ 673 to 677. (56) Section 2522.—Charitable and Similar Gifts.—Whether a transfer to a pooled income fund described in § 642(c) (5) qualifies for a charitable deduction un- der § 2522(c)(2)(A). (57) Section 2522.—Charitable and Similar Gifts.—Whether a transfer to a charitable remainder trust described in § 664 that provides for annuity or unitrust payments for one or two measuring lives or a term of years qualifies for a charitable deduction under § 2522(c)(2)(A). (58) Section 2601.—Tax Imposed.— Whether a trust that is exempt from the application of the generation-skipping transfer tax because it was irrevocable on September 25, 1985, will lose its exempt status if the situs of the trust is changed from the United States to a situs outside of the United States. (59) Section 2702.—Special Valuation Rules in Case of Transfers of Interests in Trusts.—Whether annuity interests are qualified annuity interests under § 2702 if the amount of the annuity payable annu- ally is more than 50 percent of the initial net fair market value of the property trans- ferred to the trust, or if the value of the remainder interest is less than 10 percent of the initial net fair market value of the Bulletin No. 2023–1 157 January 3, 2023 property transferred to the trust. For pur- poses of the 10 percent test, the value of the remainder interest is the present value determined under § 7520 of the right to re- ceive the trust corpus at the expiration of the term of the trust. The possibility that the grantor may die prior to the expiration of the specified term is not taken into ac- count, nor is the value of any reversion retained by the grantor or the grantor’s estate. (60) Section 2702.—Special Valua- tion Rules in Case of Transfers of Inter- ests in Trusts.—Whether a trust with one term holder satisfies the requirements of § 2702(a)(3)(A) and § 25.2702-5(c) to be a qualified personal residence trust. (61) Section 2702. Special Valuation Rules in Case of Transfers of Interests in Trusts. Whether the sale of property (in- cluding insurance policies) to a trust by a trust beneficiary is subject to § 2702 if (i) the beneficiary has a power to withdraw the trust property (or had such power pri- or to a release or modification, but retains other powers which would cause that per- son to be the owner if the person were the grantor), other than a power which would constitute a general power of appointment within the meaning of § 2041, (ii) the trust purchases the property with a note, and (iii) the value of the assets with which the trust was funded by the grantor is nomi- nal compared to the value of the property purchased. (62) Section 3121.—Definitions.—De- terminations as to which of two entities, under common law rules applicable in determining the employer-employee rela- tionship, is the employer, when one entity is treating the worker as an employee. (63) Section 4947(a)(2).—Split-Inter- est T rusts.—Whether a split-interest trust is described in § 4947(a)(2) because it has no amounts in trust for which a deduc- tion was allowed under § 170, 545(b)(2), 642(c), 2055, 2106(a)(2), or 2522. (64) Section 7702.—See section 4.01(6), above. .02 General Areas. (1) Any matter in which the determi- nation requested is primarily one of fact, e.g., market value of property, or whether an interest in a corporation is to be treat- ed as stock or indebtedness. Although it is generally inappropriate for the Service to issue a letter ruling on whether an interest in a corporation is stock or indebtedness, there may be instances in which the Ser- vice may issue a letter ruling. For exam- ple, the Service may issue a letter ruling with respect to an instrument issued by a domestic corporation if (i) the taxpayer believes that the facts strongly support the classification of the instrument as stock and (ii) the taxpayer can demonstrate that there are unique and compelling reasons to justify the issuance of a letter ruling. Before preparing the letter ruling request, the taxpayer should call the Office of As- sociate Chief Counsel having jurisdiction for the matters on which the taxpayer is seeking a letter ruling to discuss whether the Service will consider issuing a letter ruling for a particular factual situation. To determine which Associate office has jurisdiction over a particular issue see sec- tion 3 of Rev. Proc. 2023-1, this Bulletin. For a list of telephone numbers for the dif- ferent Associate offices, see section 10.07 of Rev. Proc. 2023-1. (2) Situations in which the requested ruling deals with only part of an integrated transaction. Generally, a letter ruling will not be issued on only part of an integrated transaction. If, however, a part of a trans- action falls under a no-rule area, a letter ruling on other parts of the transaction may be issued. Before preparing the letter ruling request, the taxpayer should call the Office of Associate Chief Counsel having jurisdiction for the matters on which the taxpayer is seeking a letter ruling to dis- cuss whether a letter ruling will be issued on part of the transaction. To determine which Associate office has jurisdiction over a particular issue, see section 3 of Rev. Proc. 2023-1, this Bulletin. For a list of telephone numbers for the different As- sociate offices, see section 10.07 of Rev. Proc. 2023-1. Notwithstanding the previous para- graph, in connection with transactions de- scribed in § 332, 351, 355, or 1036 and reorganizations within the meaning of § 368, the Associate Chief Counsel (Cor- porate) may issue a letter ruling on part of an integrated transaction if and to the extent that the transaction presents a sig- nificant issue (within the meaning of sec- tion 3.01(60)). See section 6.03(2) of Rev. Proc. 2023-1. (3) Situations in which two or more items or sub-methods of accounting are interrelated. If two or more items or sub-methods of accounting are interrelat- ed, ordinarily a letter ruling will not be issued on a change in accounting meth- od involving only one of the items or sub-methods. (4) The tax effect of any transaction to be consummated at some indefinite future time. (5) Any matter dealing with the ques- tion of whether property is held primar- ily for sale to customers in the ordinary course of a trade or business. (6) The tax effect of a transaction if any part of the transaction is involved in litigation among the parties affected by the transaction, except for transactions in- volving bankruptcy reorganizations. (7) (a) Situations in which the taxpayer or a related party is domiciled or organized in a foreign jurisdiction with which the United States does not have an effective mechanism for obtaining tax information with respect to civil tax examinations and criminal tax investigations, which would preclude the Service from obtaining in- formation located in such jurisdiction that is relevant to the analysis or examination of the tax issues involved in the ruling re- quest. (b) The provisions of subsection (a) above do not apply if the taxpayer or af- fected related party (i) consents to the disclosure of all relevant information re- quested by the Service in processing the ruling request or in the course of an ex- amination in order to verify the accuracy of the representations made and to oth- erwise analyze or examine the tax issues involved in the ruling request, and (ii) waives all claims to protection of bank or commercial secrecy laws in the foreign ju- risdiction with respect to the information requested by the Service. In the event the taxpayer’s or related party’s consent to disclose relevant information or to waive protection of bank or commercial secrecy is determined by the Service to be ineffec- tive or of no force and effect, then the Ser- vice may retroactively rescind any ruling rendered in reliance on such consent. (8) A matter involving the Federal tax consequences of any proposed Federal, state, local, municipal, or foreign legis- lation. The Service may provide gener- al information in response to an inquiry. However, the Office of Associate Chief January 3, 2023 158 Bulletin No. 2023–1 Counsel (EEE) may issue letter rulings regarding the effect of proposed state, lo- cal, or municipal legislation upon an el- igible deferred compensation plan under § 457(b) provided that the letter ruling request relating to the plan complies with the other requirements of Rev. Proc. 2023- 1, this Bulletin. (9) Except with respect to a Covered Transaction within the meaning of sec- tion 2.03(1)(a) of Rev. Proc. 2017–52, 2017-41 I.R.B. 283, a letter ruling will not be issued with respect to an issue that is clearly and adequately addressed by statute, regulations, decision of a court, revenue rulings, revenue procedures, notices, or other authority published in the Internal Revenue Bulletin (Comfort Ruling). However, except with respect to issues under §§ 332, 351, 368, and 1036 and the tax consequences resulting from the application of such Code sections (see generally section 6.03(2) of Rev. Proc. 2023-1, this Bulletin), an Associate office may in its discretion issue a Com- fort Ruling if the Associate office is oth- erwise ruling on another issue arising in the same transaction. (10) Whether an amount received (in periodic payments or as a lump sum) in connection with a legal action or a settle- ment of a legal action is properly allocated (including an allocation of all payments to one category) to recovery of capital, compensatory damages, punitive damag- es, dividends, interest, back pay, etc., for Federal tax purposes. (11) The treatment or effects of hook equity, including as a result of its issuance, ownership, or redemption. This section 4.02(11) ordinarily will not apply if (i) an interest’s status as hook equity is only transitory, such as in a triangular reorga- nization, or (ii) the treatment of the hook equity is not relevant to the treatment of the overall transaction and issue present- ed. For this purpose, “hook equity” means an ownership interest in a business entity (such as stock in a corporation) that is held by another business entity in which at least 50 percent of the interests (by vote or val- ue) in such latter entity are held directly or indirectly by the former entity. However, if an entity directly or indirectly owns all of the equity interests in another entity, the equity interests in the latter entity are not hook equity. (12) Whether a tax-qualified plan sat- isfies the requirements for qualification under §§ 401 through 420 and § 4975(e) (7). These matters are generally handled through the Employee Plans Determina- tions program as provided in Rev. Proc. 2023-4, this Bulletin, Rev. Proc. 2016-37, 2016-29 I.R.B. 136, Rev. Proc. 2015-36, 2015-27 I.R.B. 20 and Rev. Proc. 2017-41, 2017-29 I.R.B. 92. Notwithstanding the preceding sentence, the Office of Associate Chief Counsel (EEE) may issue a ruling if (i) the taxpayer has demonstrated to the sat- isfaction of the Office of Associate Chief Counsel (EEE) that the qualification issue involved is unique and requires immedi- ate guidance, (ii) as a practical matter, it is not likely that such issue will be addressed through the determination letter process, and (iii) the Office determines that it is in the interest of good tax administration to provide guidance to the taxpayer with re- spect to such qualification issue. (13) Any issue that is being considered by the Pension Benefit Guaranty Corpora- tion (PBGC) or the Department of Labor (DOL), and involves the same taxpayer, will be issued at the discretion of the Of- fice of Associate Chief Counsel (EEE). SECTION 5. AREAS UNDER STUDY IN WHICH RULINGS OR DETERMINATION LETTERS WILL NOT BE ISSUED UNTIL THE SERVICE RESOLVES THE ISSUE THROUGH PUBLICATION OF A REVENUE RULING, A REVENUE PROCEDURE, REGULATIONS, OR OTHERWISE .01 Specific Questions and Problems. (1) Sections 302 and 304.—Distribu- tions in Redemption of Stock; Redemp- tions Through Use of Related Corpora- tions.—Treatment of basis in a § 302 or 304 redemption. See Withdrawal of a No- tice of Proposed Rulemaking published in the Federal Register (84 FR 11686) on March 28, 2019. (2) Sections 351, 358, and 362.— Transfer to Corporation Controlled by Transferor; Basis to Distributees; Basis to Corporations.—The issues described as being under study in Rev. Rul. 2006-2, 2006-1 C.B. 261. (3) Section 355.—Distribution of Stock and Securities of a Controlled Corpora- tion.—Any issue relating to the qualifica- tion, under § 355 and related provisions, of a distribution, or another distribution which is part of the same plan or series of related transactions, if, at all times while any such distribution takes place and im- mediately thereafter, all of the following conditions exist: (i) the fair market val- ue of the gross investment assets of the distributing corporation or the controlled corporation is two-thirds or more of the fair market value of its total gross assets; (ii) the fair market value of the gross as- sets of the trade(s) or business(es) on which the distributing corporation or the controlled corporation relies to satisfy the active trade or business requirement of § 355(b) is less than 10 percent of the fair market value of its gross investment assets; and (iii) the ratio of the fair market value of the gross investment assets to the fair market value of the gross assets oth- er than the gross investment assets of the distributing corporation or the controlled corporation is three times or more of such ratio for the other corporation (i.e., the controlled corporation or the distributing corporation, respectively). For purposes of determining the fair market value of the distributing corpo- ration’s and the controlled corporation’s gross investment assets, gross assets other than gross investment assets, gross assets of the trade or business, and total gross assets, all members of such corpo- ration’s separate affiliated group, within the meaning of § 355(b)(3)(B), are treat- ed as one corporation. If the distributing corporation or the controlled corporation relies on an active trade or business of a partnership for purposes of § 355(b), then for purposes of determining the fair mar- ket value of the gross assets of the trade(s) or business(es) on which the distributing corporation or the controlled corporation relies to satisfy the active trade or business requirement of § 355(b), such corporation is treated as owning its ratable share of the gross assets of the partnership. For purposes of this section 5.01(3), “investment assets” has the meaning giv- en such term by § 355(g)(2)(B), except as follows: (i) in the case of stock or securi- ties in a corporation any stock of which is traded on (or subject to the rules of) an established financial market within the meaning of § 1.1092(d)-1(b) (pub- Bulletin No. 2023–1 159 January 3, 2023 licly traded stock), § 355(g)(2)(B)(iv) is applied by substituting “50-percent” for “20-percent;” (ii) except as provided in clause (iv) of this sentence, an interest in a publicly traded partnership (as defined in § 7704(b), regardless of whether such partnership is treated as a corporation pur- suant to § 7704(a)) is treated in the same manner as publicly traded stock; (iii) ex- cept as provided in clause (iv) of this sen- tence, an interest in a partnership that is not a publicly traded partnership is treated in the same manner as stock which is not publicly traded stock; and (iv) in the case of an interest in a partnership (other than a publicly traded partnership treated as a corporation pursuant to § 7704(a)), the active trade or business of which is taken into account by the distributing corpora- tion or the controlled corporation for pur- poses of § 355(b), or would be taken into account without regard to the five-year requirement of § 355(b)(2)(B), clauses (ii) and (iii) of this sentence do not apply. The Service also will not rule on any issue relating to the qualification, under § 355 and related provisions, of a dis- tribution if, as part of a plan or series of related transactions, investment assets are disposed of, or property, including property qualifying as an active trade or business within the meaning of § 355(b), is acquired with a principal purpose of avoiding this section 5.01(3). This section 5.01(3) does not apply if (i) all the stock of the controlled corporation that is distribut- ed in the distribution is distributed to one or more members of the affiliated group, as defined in § 243(b)(2)(A), of which the distributing corporation is a member; and (ii) such distribution is not part of a plan or series of related transactions pursuant to which stock of any corporation will be distributed outside such affiliated group in a distribution described in this section 5.01(3) or in section 4.01(29) of this rev- enue procedure. See also, section 6.03(2) (b), Rev. Proc. 2023-1, this Bulletin. (4) Section 358. See section 5.01(2), above. (5) Section 362. See section 5.01(2), above. (6) Section 401.—Qualified Pension, Profit-sharing, and Stock Bonus Plans.— Whether a program providing a limited period during which certain retirees who are currently receiving lifetime annuity payments from a qualified pension plan may elect to convert their annuities into lump sums that are payable immediately (sometimes referred to as a “retiree lump- sum window”) complies with the quali- fication requirements under section 401. See Notice 2019-18, 2019-13 I.R.B. 915, Part III, which provides that the IRS will not issue private letter rulings with regard to retiree lump-sum windows. However, if a taxpayer is eligible to apply for and receive a determination letter, the IRS will no longer include a caveat expressing no opinion regarding the tax consequences of such a window in the letter. See Rev. Proc. 2023-4, this Bulletin, for the procedures that apply to requests for determination letters under the jurisdiction of the Com- missioner, Tax Exempt and Government Entities Division, Employee Plans Rul- ings and Agreements. (7) Section 613A.—Limitations on Per- centage Depletion in Case of Oil and Gas Wells.—Whether the sale of oil or gas, or any product derived from oil or gas, is a bulk sale for purposes of § 613A(d)(2). (8) Sections 661 and 662.—Deduction for Estates and Trusts Accumulating In- come or Distributing Corpus; Inclusion of Amounts in Gross Income of Beneficia- ries of Estates and Trusts Accumulating Income or Distributing Corpus.—Wheth- er the distribution of property by a trustee from an irrevocable trust to another irre- vocable trust (sometimes referred to as a “decanting”) resulting in a change in ben- eficial interests is a distribution for which a deduction is allowable under § 661 or which requires an amount to be included in the gross income of any person under § 662. (9) Section 671.—Trust Income, De- ductions, and Credits Attributable to Grantors and Others as Substantial Own- ers.—Whether the grantor will be consid- ered the owner of any portion of a transfer in trust under §§ 673 to 677 that is purport- ed to be an incomplete gift under § 2511, specifically including, but not limited to, a transfer to a trust providing for distribu- tions at the direction of a committee to the donor and the committee members either by unanimous consent of the committee members or a majority of the committee members with the consent of the donor. (10) Section 678.—Person other than Grantor Treated as Substantial Owner.— Whether the beneficiaries of a trust will be considered the owners of any portion of such trust when two or more of such beneficiaries have the power to distrib- ute income or principal to themselves by unanimous consent. (11) Section 1014.—Basis of Proper- ty Acquired from a Decedent.—Wheth- er the assets in a grantor trust receive a § 1014 basis adjustment at the death of the deemed owner of the trust for income tax purposes when those assets are not inclu- dible in the gross estate of that owner un- der chapter 11 of subtitle B of the Internal Revenue Code. (12) Section 2036.—Transfers with Retained Life Estate.—Whether the cor- pus of a trust will be included in a grant- or’s estate when the trustee of the trust is a private trust company owned partially or entirely by members of the grantor’s family. (13) Section 2038.—Revocable Trans- fers.—Whether the corpus of a trust will be included in a grantor’s estate when the trustee of the trust is a private trust compa- ny owned partially or entirely by members of the grantor’s family. (14) Section 2041.—Powers of Ap- pointment.—Whether the corpus of a trust will be included in an individual’s estate when the trustee of the trust is a private trust company owned partially or entirely by members of the individual’s family. (15) Sections 2041 and 2514.—Powers of Appointment.—Whether the beneficia- ries of a trust hold general powers of ap- pointment over any portion of a transfer to a trust when (A) two or more of such ben- eficiaries have the power to distribute in- come or principal to themselves by unan- imous consent and without the consent of the donor and either (B) such beneficiaries must be replaced upon the lapse of their powers as the result of death or otherwise or (C) all of such beneficiaries’ powers de- scribed by (A) lapse upon the death of any one of the beneficiaries. (16) Section 2501.—Imposition of Tax.—Whether the distribution of proper- ty by a trustee from an irrevocable trust to another irrevocable trust (sometimes referred to as a “decanting”) resulting in a change in beneficial interests is a gift un- der § 2501. (17) Section 2511.—Transfers in Gen- eral.—Whether a transfer in trust that is January 3, 2023 160 Bulletin No. 2023–1 purported not to be considered owned by the grantor under § 671 is an incomplete gift, specifically including, but not limited to, a transfer to a trust providing for dis- tributions at the direction of a committee to the donor and the committee members either by unanimous consent of the com- mittee members or a majority of the com- mittee members with the consent of the donor. (18) Section 2514.—See section 5.01(15), above. (19) Sections 2601 and 2663.—Tax Im- posed; Regulations.—Whether the distri- bution of property by a trustee from an ir- revocable generation-skipping transfer tax (GST) exempt trust to another irrevocable trust (sometimes referred to as a “decant- ing”) resulting in a change in beneficial interests causes the loss of GST exempt status or constitutes a taxable termination or taxable distribution under § 2612. (20) Sections 4966 and 4967.—Taxes on T axable Distributions; Taxes on Pro- hibited Benefits.—Issues involving inter- pretation of §§ 4966 and 4967 regarding distributions from donor advised funds. (21) Section 6109. Identifying Num- bers. The proper assignment or retention of an employer identification number (EIN) in the case of a reorganization with- in the meaning of § 368(a)(1)(F) if the transferor corporation becomes disregard- ed as an entity separate from its owner un- der § 301.7701-3. .02 General Areas. Any issue involving the application of a provision of the Code to the extent of any amendment made by Public Law 117- 169, 136 Stat. 1818 (August 16, 2022), commonly referred to as the Inflation Reduction Act of 2022. The Service may provide general information in response to an inquiry prior to the resolution of the issue. SECTION 6. AREAS COVERED BY AUTOMATIC APPROVAL PROCEDURES IN WHICH RULINGS WILL NOT ORDINARILY BE ISSUED .01 Section 338.—Certain Stock Pur- chases Treated as Asset Acquisitions.— All requests for an extension of time un- der § 301.9100-3 within which to make an election under § 338(g) or (h)(10) where the Service has provided an administra- tive procedure to seek such an extension. See Rev. Proc. 2003-33, 2003-1 C.B. 803 (extension automatically granted to cer- tain persons required to file Form 8023 to make a valid § 338 election that have not filed Form 8023 by its due date). .02 Section 442.—Change of Annual Accounting Period.—All requests for a change in annual accounting period where the Service has provided an automatic change procedure for obtaining such a change in annual accounting period. See Rev. Proc. 2002-39, 2002-1 C.B. 1046 (general procedures for prior approval), as clarified and modified by Notice 2002-72, 2002-2 C.B. 843, and modified by Rev. Proc. 2003-34, 2003-1 C.B. 856, and Rev. Proc. 2018-17, 2018-9 I.R.B. 384; Rev. Proc. 2006-45, 2006-2 C.B. 851 (certain corporations), as clarified and modified by Rev. Proc. 2007-64, 2007-2 C.B. 818, and modified by Rev. Proc. 2018-17, 2018-9 I.R.B. 384; Rev. Proc. 2006-46, 2006-2 C.B. 859 (partnership, S corporation, per- sonal service corporation, or trust); and Rev. Proc. 2003-62, 2003-2 C.B. 299 (in- dividual seeking a calendar year). .03 Section 446.—General Rule for Methods of Accounting.—Except as oth- erwise specifically provided in applicable procedures published in the Internal Rev- enue Bulletin, all requests for a change in method of accounting where the Service has provided an automatic change request procedure for obtaining such a change in method of accounting. See the automatic change request procedures listed in sec- tion 9.22 of Rev. Proc. 2023-1, this Bul- letin. .04 Section 461.—General Rule for Taxable Year of Deduction.—All requests for making or revoking an election under § 461 where the Service has provided an administrative procedure for making or re- voking such an election under § 461. See Rev. Proc. 92-29, 1992-1 C.B. 748 (deal- ing with the use of an alternative method for including in basis the estimated cost of certain common improvements in a real estate development). .05 Section 704(c).—Contributed Property.—Requests from Qualified Mas- ter Feeder Structures, as described in sec- tion 4.02 of Rev. Proc. 2001-36, 2001-1 C.B. 1326, for permission to aggregate built-in gains and losses from contributed qualified financial assets for purposes of making § 704(c) and reverse § 704(c) al- locations. .06 Section 1362.—Election; Revo- cation; Termination.—All situations in which an S corporation qualifies for auto- matic late S corporation relief under Rev. Proc. 2013-30, 2013-36 I.R.B. 173. .07 Sections 1502, 1504, and 1552.— Regulations; Definitions; Earnings and Profits.—All requests for waivers or con- sents on consolidated return issues where the Service has provided an administra- tive procedure for obtaining such waiv- ers or consents on consolidated return issues. See Rev. Proc. 2014-24, 2014-13 I.R.B. 879 (certain subsidiary members treated as if they filed a Form 1122 even though they failed to do so); Rev. Proc. 2002-32, 2002-1 C.B. 959, as modified by Rev. Proc. 2006-21, 2006-1 C.B. 1050 (certain corporations seeking reconsolida- tion within the 5-year period specified in § 1504(a)(3)(A)); Rev. Proc. 90-39, 1990- 2 C.B. 365, as modified by Rev. Proc. 2006-21, and as clarified by Rev. Proc. 90- 39A, 1990-2 C.B. 367 (certain affiliated groups of corporations seeking, for earn- ings and profits determinations, to make an election or a change in their method of allocating the group’s consolidated Feder- al income tax liability); and Rev. Proc. 89- 56, 1989-2 C.B. 643, as modified by Rev. Proc. 2006-21 (certain affiliated groups of corporations seeking to file a consolidated return in which member(s) of the group use a 52-53 week taxable year). .08 Section 2010(c)(5)(A).—Election Required.—All requests filed before the fifth anniversary of the decedent’s date of death for an extension of time under § 301.9100-3 to make an election under § 2010(c)(5)(A), where the Service has provided an administrative procedure to seek such an extension. See Rev. Proc. 2022-32, 2022-30 I.R.B. 101 (procedure providing for an extension of time to certain taxpayers to make a “portability” election under § 2010(c)(5)(A)). .09 Section 7701.—Definitions.—All requests for an extension of time un- der § 301.9100-3 within which to make an entity classification election under § 301.7701-3 where the Service has pro- vided an administrative procedure to seek such an extension. See Rev. Proc. 2009- 41, 2009-39 I.R.B. 439 (extension auto- Bulletin No. 2023–1 161 January 3, 2023 matically granted to certain persons re- quired to file Form 8832 to make a valid entity classification election that have not filed Form 8832 by its due date). SECTION 7. EFFECT ON OTHER REVENUE PROCEDURES Rev. Proc. 2022-3, 2022-1 I.R.B.144, is superseded. Rev. Proc. 2022-19, 2022- 41 I.R.B. 282, is superseded. Rev. Proc. 2022-28, 2022-27 I.R.B. 65, is supersed- ed. SECTION 8. EFFECTIVE DATE This revenue procedure is effective January 3, 2023. SECTION 9. PAPERWORK REDUCTION ACT The collections of information con- tained in this revenue procedure have been reviewed and approved by the Of- fice of Management and Budget in accor- dance with the Paperwork Reduction Act (44 U.S.C. § 3507) under control number 1545-0123. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number. The collections of information in this revenue procedure are in sections 2.03 and 3.01(60). This information is required to evaluate whether the request for a letter ruling or determination letter is not covered by the provisions of this revenue procedure. The collections of information are required to obtain a letter ruling or determination let- ter. The likely respondents are businesses or other for-profit institutions. The estimated total annual reporting and/or recordkeeping burden of this reve- nue procedure, and Rev. Proc. 2023-1, this Bulletin is 316,020 hours. The estimated annual burden per re- spondent/recordkeeper varies from 1 hour to 200 hours, depending on individual cir- cumstances, with an estimated average bur- den of 80 hours. The estimated number of respondents and/or recordkeepers is 3,956. The estimated annual frequency of re- sponses is on occasion. Books or records relating to a collec- tion of information must be retained as long as their contents may become mate- rial in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as re- quired by 26 U.S.C. § 6103. DRAFTING INFORMATION The principal author of this revenue procedure is Jordan A. Proffitt of the Office of Associate Chief Counsel (Corporate). For further information about this revenue procedure, please contact Jordan A. Prof- fitt at (202) 317-5363 (not a toll-free call) or call the Associate office contacts listed in section 10.07 of Rev. Proc. 2023-1, this Bulletin. See section 3 of Rev. Proc. 2023- 1 to determine which Associate office has jurisdiction over a particular issue. January 3, 2023 162 Bulletin No. 2023–1 Rev. Proc. 2023-4 TABLE OF CONTENTS SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? ...................................168 .01 Purpose of revenue procedure .....................................................................168 .02 Organization of revenue procedure .................................................................168 .03 Other guidance affecting this revenue procedure .......................................................169 .04 Updated annually ...............................................................................172 .05 Possible future updates related to Appeals review ......................................................173 SECTION 2. WHAT CHANGES HAVE BEEN MADE TO REVENUE PROCEDURE 2022-4? ......................173 .01 In general .....................................................................................173 .02 Changes made to Revenue Procedure 2022-4 .........................................................173 PART I. GENERALLY APPLICABLE PROCEDURES SECTION 3. IN WHAT FORM IS ADVICE PROVIDED BY EMPLOYEE PLANS RULINGS AND AGREEMENTS? .......................................................................173 .01 In general .....................................................................................174 .02 Letter ruling ...................................................................................174 .03 Closing agreement ..............................................................................174 .04 Determination letter .............................................................................174 .05 Opinion letter ..................................................................................174 .06 Oral advice ....................................................................................175 .07 Nonbank trustee approval letters ...................................................................175 .08 Compliance statement ...........................................................................176 .09 Advisory letter .................................................................................176 SECTION 4. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN ADVICE UNDER THIS PROCEDURE? ........................................................................176 .01 In general .....................................................................................176 .02 Determination Letters ............................................................................176 .03 Letter Rulings ..................................................................................176 .04 Voluntary Closing Agreements .....................................................................176 .05 Other Matters ..................................................................................176 SECTION 5. ON WHAT ISSUES MUST WRITTEN ADVICE BE REQUESTED UNDER DIFFERENT PROCEDURES? ............................................................................177 .01 Pre-approved plans ..............................................................................177 .02 Employee Plans Compliance Resolution System .......................................................177 .03 Chief Counsel ..................................................................................177 .04 Determination letters not issued for requests for minimum funding waivers .................................177 SECTION 6. WHAT ARE THE GENERAL INSTRUCTIONS FOR REQUESTING LETTER RULINGS AND DETERMINATION LETTERS FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? ........178 .01 In general .....................................................................................178 .02 Certain information required in requests for letter rulings or determination letters, as applicable .................178 .03 Additional information required in certain circumstances ................................................188 .04 Address to send the request .......................................................................190 .05 Pending letter ruling requests ......................................................................190 .06 When to attach letter ruling to return ................................................................190 .07 How to check on status of request ..................................................................190 Bulletin No. 2023–1 163 January 3, 2023 SECTION 7. WHAT ACTIONS ARE TAKEN IF A REQUEST IS WITHDRAWN OR EMPLOYEE PLANS RULINGS AND AGREEMENTS DECLINES TO ISSUE A LETTER RULING OR DETERMINATION LETTER? ................................................................191 .01 In general .....................................................................................191 .02 Notification of appropriate Service official ...........................................................191 .03 Refunds of user fees .............................................................................191 PART II. PROCEDURES FOR DETERMINATION LETTER REQUESTS PART IIA. REQUESTING DETERMINATION LETTERS SECTION 8. IN WHAT AREAS ARE DETERMINATION LETTERS ISSUED? ..................................191 .01 Circumstances under which determination letters are issued ..............................................191 .02 Types of requests ...............................................................................192 .03 Areas in which determination letters will not be issued ..................................................193 .04 Determination letter applications ...................................................................194 .05 Review of determination letters ....................................................................194 SECTION 9. WHAT IS THE GENERAL SCOPE OF A DETERMINATION LETTER? ............................195 .01 Scope of this section .............................................................................195 .02 Scope of determination letters .....................................................................195 .03 Design-based safe harbor .........................................................................195 .04 Governmental plans under § 414(d) .................................................................196 .05 Church plans under § 414(e) ......................................................................196 .06 Tax treatment of certain contributions under § 414(h) ...................................................196 .07 Other limits on scope of determination letter ..........................................................196 .08 Leased employees ...............................................................................196 .09 Partial terminations ..............................................................................196 .10 Publication 794, Favorable Determination Letter ......................................................196 SECTION 10. WHAT IS THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS? ......197 .01 Scope ........................................................................................197 .02 Complete information required ....................................................................197 .03 Complete copy of plan and applicable amendments required .............................................197 .04 Separate application for each single § 414(l) plan (qualified plans only) ....................................197 .05 Prior letters ....................................................................................197 .06 Plans involving mergers (qualified plans only) ........................................................198 .07 User fees ......................................................................................198 .08 Interested party/person notification and comment ......................................................198 .09 Contrary authority must be distinguished .............................................................198 .10 Employer-employee relationship ...................................................................198 .11 Incomplete applications ..........................................................................199 .12 Effect of failure to disclose material fact .............................................................199 .13 Where to file requests ............................................................................199 .14 Submission of related plans .......................................................................200 .15 Withdrawal of requests ...........................................................................200 .16 Right to status conference ........................................................................200 .17 How to request status conference ...................................................................200 .18 Correct format required ..........................................................................200 SECTION 11. WHAT IS THE PROCESS FOR REQUESTING DETERMINATION LETTERS FOR INDIVIDUALLY DESIGNED PLANS? ........................................................200 .01 Requesting determination letters ...................................................................201 .02 Forms ........................................................................................201 .03 Application must include a copy of plan and amendments ...............................................202 .04 Restatements required ...........................................................................202 .05 Section 414(x) combined plans ....................................................................202 January 3, 2023 164 Bulletin No. 2023–1 SECTION 12. WHEN MAY AN ADOPTER OF A PRE-APPROVED PLAN (STANDARDIZED OR NONSTANDARDIZED) SUBMIT A DETERMINATION LETTER APPLICATION? .................202 .01 Eligibility to apply for a determination letter for a qualified pre-approved plan under Rev. Proc. 2017-41 ..........202 .02 Determination letter applications on Form 5307 .......................................................203 .03 Determination letter applications on Form 5300 .......................................................203 .04 Scope of review ................................................................................205 .05 Submission period for pre-approved plans ............................................................205 .06 Reliance equivalent to determination letter ...........................................................206 SECTION 13. WHAT ARE THE DETERMINATION LETTER FILING PROCEDURES FOR FORM 5307 (QUALIFIED PLANS ONLY)? ...............................................................206 .01 Scope ........................................................................................206 .02 Form 5307 filing procedures ......................................................................206 .03 Additional information with respect to ESOPS submitted on Form 5307 ....................................207 .04 Deviations from language of approved plan ..........................................................207 .05 Adoption of plan prior to date of plan’s letter .........................................................207 .06 Timing of determination letter applications for adopting employers of pre-approved plans ......................207 SECTION 14. WHAT ARE THE DETERMINATION LETTER FILING PROCEDURES FOR INDIVIDUALLY DESIGNED MULTIPLE EMPLOYER PLANS (QUALIFIED PLANS ONLY)? ......................207 .01 Scope ........................................................................................208 .02 Applicant must request letter for plan in the name of the controlling member ................................208 .03 Where to file requests ............................................................................208 .04 Addition of employers ...........................................................................208 SECTION 15. WHAT ARE THE PROCEDURES FOR FILING A REQUEST FOR A DETERMINATION UPON TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS, NOTICE OF MERGER, CONSOLIDATION, ETC.? ..................................................................208 .01 Scope ........................................................................................208 .02 Required forms .................................................................................209 .03 Supplemental information ........................................................................209 .04 Compliance with Title IV of ERISA .................................................................210 .05 Termination prior to time for amending for change in law ...............................................210 .06 Restatement not required for terminating plan .........................................................210 SECTION 16. WHAT ARE THE DETERMINATION LETTER FILING PROCEDURES FOR GROUP TRUSTS? .....210 .01 Scope ........................................................................................210 .02 Required information ............................................................................210 .03 Required forms .................................................................................211 SECTION 17. WHAT ARE THE PROCEDURES FOR FILING A REQUEST FOR A DETERMINATION OF LEASED EMPLOYEE STATUS (QUALIFIED PLANS ONLY)? ...................................211 .01 Scope ........................................................................................211 .02 Employer must request the determination under § 414(n) ................................................211 .03 Forms ........................................................................................212 .04 Employer is responsible for determining continuing status under § 414(n) ..................................212 .05 Pre-approved plans ..............................................................................212 .06 Required information for § 414(n) determination ......................................................212 SECTION 18. WHAT ARE THE PROCEDURES FOR REQUESTING § 401(h) AND § 420 DETERMINATION LETTERS? ................................................................................212 .01 Scope ........................................................................................213 .02 Required information for § 401(h) determination ......................................................213 .03 Required information for § 420 determination .........................................................213 Bulletin No. 2023–1 165 January 3, 2023 PART IIB. INTERESTED PARTY AND INTERESTED PERSON NOTICE AND COMMENT SECTION 19A. WHAT RIGHTS TO NOTICE AND COMMENT DO INTERESTED PARTIES HAVE (QUALIFIED PLANS ONLY)? ..............................................................214 .01 Rights of interested parties ........................................................................214 .02 Comments by interested parties ....................................................................214 .03 Requests for DOL to submit comments ..............................................................216 .04 Right to comment if DOL declines to comment ........................................................216 .05 Confidentiality of comments ......................................................................217 .06 Availability of comments .........................................................................217 .07 When comments are deemed made .................................................................217 SECTION 19B. WHAT NOTICE REQUIREMENTS APPLY TO INTERESTED PERSONS (§ 403(b) PLANS ONLY)? ..................................................................217 .01 Requirement to notify interested persons .............................................................217 .02 Comments by interested persons ...................................................................217 .03 When comments are deemed made .................................................................218 .04 Section 19B is not applicable to plan sponsors of governmental plans ......................................218 SECTION 20A. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PARTIES (QUALIFIED PLANS ONLY)? ..............................................................218 .01 Notice to interested parties ........................................................................219 .02 Time when notice must be given ...................................................................219 .03 Content of notice ...............................................................................219 .04 Procedures for making information available to interested parties .........................................220 .05 Information to be available to interested parties .......................................................220 .06 Special rules if there are fewer than 26 participants .....................................................220 .07 Information described in § 6104(a)(1)(D) should not be included ..........................................221 .08 Availability of additional information to interested parties ...............................................221 .09 Availability of notice to interested parties ............................................................221 SECTION 20B. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PERSONS (§ 403(b) PLANS ONLY)? ..................................................................221 .01 Notice to interested persons .......................................................................221 .02 Time when notice must be given ...................................................................221 .03 Content of notice ...............................................................................222 .04 Information to be available to interested persons .......................................................222 .05 Information described in § 6110(c) should not be included ...............................................222 .06 Section 20B is not applicable to plan sponsors of governmental plans ......................................223 PART IIC. PROCESSING DETERMINATION LETTER REQUESTS SECTION 21. HOW DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS HANDLE DETERMINATION LETTER REQUESTS? ......................................................................223 .01 Oral advice ....................................................................................223 .02 Conferences ...................................................................................223 .03 Determination letter based solely on administrative record (qualified plans only) .............................223 .04 Notice of final determination ......................................................................224 .05 Issuance of the notice of final determination (qualified plans only). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224 SECTION 22. WHAT ARE THE STEPS FOR EXHAUSTING ADMINISTRATIVE REMEDIES (QUALIFIED PLANS ONLY)? ...............................................................225 .01 In general .....................................................................................225 .02 Steps for exhausting administrative remedies .........................................................225 .03 Applicant’s request for § 7805(b) relief ..............................................................225 .04 Interested parties ................................................................................225 .05 Deemed exhaustion of administrative remedies ........................................................225 January 3, 2023 166 Bulletin No. 2023–1 .06 Service must have reasonable time to act on appeal ....................................................226 .07 Service must have reasonable time to act on request for § 7805(b) relief ....................................226 SECTION 23. WHAT EFFECT WILL A DETERMINATION LETTER HAVE? ..................................226 .01 May be relied on subject to limitations ..............................................................226 .02 Scope of reliance on determination letter .............................................................226 .03 Effect of subsequent publication of revenue ruling, etc. .................................................226 .04 Effect of subsequent amendment by employer .........................................................227 .05 Revocation or modification of a determination letter ....................................................227 .06 Determination letter revoked or modified based on material change in facts applied retroactively ................227 .07 Not otherwise generally revoked or modified retroactively ...............................................227 .08 Taxpayer may request that retroactive effect of revocation or modification be limited under § 7805(b) ............228 PART III. PROCEDURES FOR LETTER RULING REQUESTS PART IIIA. REQUESTING LETTER RULINGS SECTION 24. UNDER WHAT CIRCUMSTANCES DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS ISSUE LETTER RULINGS? ..................................................228 .01 Scope limited to issues specified ...................................................................229 .02 Generally not in employee plans qualification matters ..................................................230 .03 Request to Employee Plans Rulings and Agreements for extension of time for making an election or for other relief under § 301.9100-1. ....................................................................230 .04 Issuance of a letter ruling before the issuance of a regulation or other published guidance ......................230 .05 Issues in prior return .............................................................................230 .06 Generally not to business associations or groups .......................................................231 .07 Generally not to foreign governments ...............................................................231 .08 Generally not on federal tax consequences of proposed legislation .........................................231 SECTION 25. UNDER WHAT CIRCUMSTANCES DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS HAVE DISCRETION TO ISSUE LETTER RULINGS? ............................231 .01 Ordinarily not in certain areas because of factual nature of the problem .....................................231 .02 No “comfort” letter rulings ........................................................................232 .03 Not on alternative plans or hypothetical situations .....................................................232 .04 Ordinarily not on part of an integrated transaction .....................................................232 .05 Not on partial terminations of employee plans .........................................................232 .06 Law requires a letter ruling ........................................................................232 .07 Issues under consideration by the PBGC or the DOL ...................................................232 .08 Domicile in a foreign jurisdiction ...................................................................232 SECTION 26. WHAT IS THE PROCEDURE FOR REQUESTING A LETTER RULING FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? ..........................................233 .01 General procedures for requesting a letter ruling .......................................................233 .02 Specific additional procedures apply to certain letter ruling requests .......................................233 PART IIIB. PROCESSING LETTER RULING REQUESTS SECTION 27. HOW DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS HANDLE LETTER RULING REQUESTS? ......................................................................233 .01 In general .....................................................................................233 .02 Is not bound by informal opinion expressed ..........................................................233 .03 Will return any letter ruling request mistakenly sent to wrong address ......................................233 .04 Tells taxpayer if request lacks essential information during initial contact ...................................233 .05 Information must be submitted within 30 calendar days .................................................234 .06 Requires prompt submission of additional information requested after initial contact ..........................234 .07 Encourages use of fax ............................................................................234 .08 Address to send additional information ..............................................................234 Bulletin No. 2023–1 167 January 3, 2023 .09 Number of copies of additional information to be submitted ..............................................234 .10 Extension of 30-day or 21-day period may be granted if justified ..........................................234 .11 Case closed if taxpayer does not submit additional information ...........................................235 .12 Near the completion of the ruling process, advises taxpayer of conclusions and, if Employee Plans Rulings and Agreements will rule adversely, offers the taxpayer the opportunity to withdraw the letter ruling request ...........235 .13 May request draft of proposed letter ruling near the completion of the ruling process ..........................235 SECTION 28. HOW DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS SCHEDULE CONFERENCES WITH TAXPAYERS? .......................................................................235 .01 Schedules a conference if requested by taxpayer .......................................................235 .02 Permits taxpayer one conference of right .............................................................236 .03 Disallows verbatim recording of conferences .........................................................236 .04 Makes tentative recommendations on substantive issues .................................................236 .05 May offer additional conferences ...................................................................236 .06 Requires written confirmation of information presented at conference ......................................237 .07 May schedule a pre-submission conference ...........................................................237 .08 May schedule a conference to be held by telephone ....................................................237 SECTION 29. WHAT EFFECT WILL A LETTER RULING HAVE? ............................................237 .01 Has same effect as a determination letter .............................................................237 .02 Will not apply to another taxpayer ..................................................................237 .03 Will be used by the Service in examining the taxpayer’s return ...........................................238 .04 May be revoked or modified if found to be in error .....................................................238 .05 Letter ruling revoked or modified based on material change in facts applied retroactively ......................239 .06 Not otherwise generally revoked or modified retroactively ...............................................239 .07 Will not apply to a similar transaction in same year or any other year ......................................239 .08 Retroactive effect of revocation or modification applied to a continuing action or series of actions ...............239 .09 May be retroactively revoked or modified if the transaction is completed without reliance on the letter ruling .......239 .10 Taxpayer may request that retroactivity be limited .....................................................239 PART IV. USER FEES SECTION 30. WHAT ARE THE USER FEE REQUIREMENTS FOR REQUESTING ADVICE FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? ..........................................240 .01 Legislation authorizing user fees ...................................................................240 .02 Requests to which user fees apply ..................................................................240 .03 Requests and other actions that do not require the payment of a user fee ....................................240 .04 Exemptions from the user fee requirements ...........................................................240 .05 User fees under EPCRS ..........................................................................241 .06 Requests involving multiple offices, fee categories, issues, transactions, or entities ............................241 .07 Method of payment ..............................................................................241 .08 Transmittal forms ...............................................................................242 .09 Effect of nonpayment or payment of incorrect amount ..................................................243 .10 Refunds of user fees .............................................................................243 .11 Request for reconsideration of user fee ..............................................................245 SECTION 31. WHERE TO SUBMIT REQUESTS FOR LETTER RULINGS, OPINION LETTERS, ADVISORY LETTERS, DETERMINATION LETTERS, AND COMPLIANCE STATEMENTS FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? ..........................................246 .01 Letter rulings and opinion letters ...................................................................246 .02 Determination letters ............................................................................247 .03 Opinion and advisory letters .......................................................................247 .04 VCP compliance statements – electronic submissions only ...............................................248 SECTION 32. WHAT IS THE EFFECT OF THIS REVENUE PROCEDURE ON OTHER DOCUMENTS? ...........248 SECTION 33. EFFECTIVE DATE .........................................................................248 January 3, 2023 168 Bulletin No. 2023–1 SECTION 34. PAPERWORK REDUCTION ACT ............................................................248 DRAFTING INFORMATION .............................................................................249 APPENDIX A SCHEDULE OF USER FEES ................................................................250 .01 Letter ruling requests ............................................................................250 .02 Opinion letters on prototype individual retirement accounts and/or annuities, SEPs, SIMPLE IRAs, SIMPLE IRA Plans, Roth IRAs and dual-purpose IRAs .................................................250 .03 Opinion letters on master and prototype plans submitted pursuant to Rev. Proc. 2015-36 .......................250 .04 Advisory letters on VS plans submitted pursuant to Rev. Proc. 2015-36 ....................................250 .05 Opinion letters on pre-approved plans submitted pursuant to Rev. Proc. 2017-41 .............................250 .06 Opinion letters on § 403(b) pre-approved plans pursuant to Rev. Proc. 2021-37 ..............................250 .07 Determination letters ............................................................................251 .08 Opinion letters on § 403(b) prototype plans pursuant to Rev. Proc. 2013-22 and Rev. Proc. 2014-28 ..............251 .09 Advisory letters on § 403(b) VS plans pursuant to Rev. Proc. 2013-22 and Rev. Proc. 2014-28 ..................251 .10 User fees for VCP submissions under EPCRS Revenue Procedure 2021-30 .................................251 APPENDIX B1 SAMPLE NOTICE TO INTERESTED PARTIES ..............................................253 APPENDIX B2 SAMPLE NOTICE TO INTERESTED PERSONS ..............................................255 APPENDIX C CHECKLIST FOR § 401(h) AND § 420 DETERMINATION LETTERS ............................257 APPENDIX D SAMPLE FORMAT FOR A LETTER RULING REQUEST FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS .............................................................259 APPENDIX E CHECKLIST FOR LETTER RULINGS FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS ............................................................................261 APPENDIX F ADDITIONAL CHECKLIST FOR ROTH IRA RECHARACTERIZATION RULING REQUESTS .....263 APPENDIX G ADDITIONAL CHECKLIST FOR NONBANK TRUSTEE APPLICATIONS ........................264 SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? Purpose of revenue pr ocedure . 01 This revenue procedure explains how the Internal Revenue Service (Service) provides advice to taxpayers on issues under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division, Employee Plans Rulings and Agreements Office (Employee Plans Rulings and Agreements). It also details the types of advice available to taxpayers, and the procedures for requesting and receiving such advice. Organization of revenue procedure .02 (1) Part I of this revenue procedure sets forth general information about the types of advice provided by Employee Plans Rulings and Agreements and the procedures that apply to both requests for determination letters and requests for private letter rulings. Part II contains procedures for determination letters for various types of plans and transactions. Part III contains procedures for private letter rulings within the jurisdiction of Employee Plans Rulings and Agreements. Part IV sets forth the rules for user fees that are required to be paid when requesting various types of advice. (2) Employee Plans Rulings and Agreements issues letter rulings only on certain matters specified in section 24.01 of this revenue procedure. Rev. Proc. 2023-1, this Bulletin, sets forth Bulletin No. 2023–1 169 January 3, 2023 Other guidance affecting this revenue procedure procedures for obtaining letter rulings from the Office of Associate Chief Counsel, including letter rulings relating to qualified retirement plans, § 403(b) plans, and IRAs. Rev. Proc. 2023-2, this Bulletin, sets forth procedures for requesting technical advice from the Office of Associate Chief Counsel. .03 (1) Determination letter program (a) Rev. Proc. 2022-40, 2022-47 IRB 487, provides the circumstances under which a plan sponsor may submit an individually designed plan determination letter application to Employee Plans Rulings and Agreements. Under Rev. Proc. 2022-40, an employer sponsoring an individually designed plan, including, beginning June 1, 2023, a § 403(b) individually designed plan, generally may file a determination letter application only for initial plan determination, for plan termination, and in certain other circumstances identified by the IRS in guidance published in the Internal Revenue Bulletin (IRB). Plan sponsors may also submit a determination letter application in other specified circumstances, including a submission for a qualified individually designed Merged Plan, as defined in Rev. Proc. 2022-40. A plan sponsor of a § 403(b) individually designed plan may submit the plan for an initial plan determination no earlier than the dates provided in the chart below. The dates are based on the last digit of a plan sponsor’s EIN. A plan sponsor may submit a determination letter application in any year after the year identified in the chart. If the EIN of the plan sponsor ends A determination letter application in:may be submitted beginning on: 1, 2, or 3June 1, 2023 4, 5, 6, or 7June 1, 2024 8, 9, or 0June 1, 2025 (b) Rev. Proc. 2016-37 1 describes a system of remedial amendment cycles that applies to qualified pre-approved plans and the deadlines to submit applications for opinion letters. (c) Each year a Required Amendments List is issued, which establishes the end of the remedial amendment period for an individually designed plan with respect to changes in qualification requirements that appear on the list. The 2022 Required Amendments List for Qualified Retirement Plans and § 403(b) Retirement Plans is set forth in Notice 2022-62, 2022-49 IRB 506. See https:// www.irs.gov/retirement-plans/required-amendments-list for all Required Amendments Lists. (d) Notice 2017-1, 2017-2 IRB 367, provides an exemption from the requirement to pay a user fee for certain requests to the Service for determination letters with respect to the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership (ESOP) plans maintained by small employers. (2) Qualified plans pre-approved plan program – third six-year remedial amendment cycle 1 For purposes of this revenue procedure, references to Rev. Proc. 2016-37 are to Rev. Proc. 2016-37, as modified by Rev. Proc. 2017-41, 2017-29 IRB 92, Rev. Proc. 2020-40, 2020-38 IRB 575, and Rev. Proc. 2021-38, 2021-38 IRB 425, but not as modified by Rev. Proc. 2022-40, 2022-47 IRB 487. January 3, 2023 170 Bulletin No. 2023–1 (a) Rev. Proc. 2017-41, 2017-29 IRB 92, modifies the pre-approved program for qualified plans by eliminating the distinction between M&P and VS plans, liberalizing the types of plans eligible for pre-approved status, and affording greater flexibility in plan design. In addition, Rev. Proc. 2017-41 sets forth the procedures for obtaining an opinion letter for qualified pre-approved plans submitted with respect to the third six-year remedial amendment cycle (and subsequent cycles). The third six-year remedial amendment cycle for defined contribution plans began on February 1, 2017, and ends on January 31, 2023. (b) Rev. Proc. 2020-10, 2020-21 IRB 295, provides that the third six-year remedial amendment cycle for pre-approved defined benefit plans began on May 1, 2020 and the on-cycle submission period for providers to submit opinion letter applications began on August 1, 2020. Notice 2020- 35, 2020-35 IRB 948, provides that the deadline for employer adoption of pre-approved defined benefit plans for the second six-year remedial amendment cycle and for employers to submit determination letter applications, if eligible, was extended to July 31, 2020. Consequently, the third six-year remedial amendment cycle for pre-approved defined benefit plans began on August 1, 2020. (c) Notice 2020-14, 2020-13 IRB 555, sets forth the 2020 Cumulative List, which is used by the Service in its review of opinion letter applications for pre-approved defined benefit plans during the third six-year remedial amendment cycle. (d) Rev. Proc. 2020-40, 2020-38 IRB 575, modifies Rev. Proc. 2016-37 to provide that the general deadline for adopting a discretionary amendment made to a qualified pre-approved plan (generally the end of the plan year for which the plan amendment is put into effect) applies unless a statutory provision, regulations, or other guidance published in the Internal Revenue Bulletin sets forth a different deadline. (e) Rev. Proc. 2021-38, 2021-38 IRB 425, modifies the interim amendment deadline set forth in section 15.04(1) of Rev. Proc. 2016-37 to provide that an interim amendment made to a pre- approved plan qualified under § 401(a) is adopted timely if the amendment is adopted by the end of the second calendar year after the calendar year in which the change in qualification requirements is effective with respect to the plan. Rev. Proc. 2021-38 applies to disqualifying provisions that are effective with respect to a plan after December 31, 2020. (3) Section 403(b) pre-approved plan program (a) Rev. Proc. 2013-22, 2013-18 IRB 985, 2 sets forth the procedures for obtaining opinion and advisory letters for § 403(b) prototype plans and VS plans with respect to the first six-year remedial amendment cycle for § 403(b) pre-approved plans (the cycle that ended on June 30, 2020). Rev. Proc. 2013-22 also sets forth the initial remedial amendment period for § 403(b) plans and provides that the Service will announce, in subsequent guidance, the date that will be the last day of the remedial amendment period. (b) Rev. Proc. 2019-39, 2019-42 IRB 945, as modified by Rev. Proc. 2020-40, 2020-38 IRB 575, Notice 2020-35, 2020-35 IRB 948, and Rev. Proc. 2021-37, 2021-38 IRB 385, sets forth a system of recurring remedial amendment periods for correcting form defects in § 403(b) individually designed plans and § 403(b) pre-approved plans first occurring after the initial remedial amendment period ends. Rev. Proc. 2019-39 also provides plan amendment deadlines for § 403(b) individually designed and pre-approved plans. Rev. Proc. 2020-40 modifies Rev. 2 For purposes of this revenue procedure, references to Rev. Proc. 2013-22 are to Rev. Proc. 2013-22, as modified by Rev. Proc. 2014–28, 2014-16 IRB. 944, Rev. Proc. 2015–22, 2015-11 IRB 754, Rev. Proc. 2019-39, 2019-42 IRB 945 and Rev. Proc. 2021-37, 2021-38 IRB 385; and clarified by Rev. Proc. 2017-18, 2017-5 IRB 743. Bulletin No. 2023–1 171 January 3, 2023 Proc. 2019-39 to provide that the general deadline for adopting a discretionary amendment made to a § 403(b) pre-approved plan (generally the end of the plan year for which the plan amendment is put into effect) applies unless a statutory provision, regulations, or other guidance published in the Internal Revenue Bulletin, sets forth a different deadline. (c) Rev. Proc. 2017-18, as modified by Notice 2020-35, 2020-35 IRB 948, provides that the last day of the initial remedial amendment period for § 403(b) pre-approved plans was generally June 30, 2020. Consequently, the second six-year remedial amendment cycle for § 403(b) pre- approved plans began on July 1, 2020. (d) Rev. Proc. 2021-37 modifies and supersedes Rev. Proc. 2013-22 for opinion letter applications submitted with respect to a § 403(b) pre-approved plan’s second six-year remedial amendment cycle (and subsequent cycles). The provisions of Rev. Proc. 2013-22 continue to apply to opinion and advisory letter applications submitted for the first cycle for § 403(b) pre- approved plans. (4) IRA opinion letter program Announcement 2022-6, 2022-13 IRB 934, temporarily suspends the opinion letter program for prototype IRAs (traditional, Roth and SIMPLE IRAs), SEPs (including salary reduction SEPs (SARSEPs)), and SIMPLE IRA plans. As provided in Announcement 2022-6, the Service intends to issue a new revenue procedure describing procedures for submitting a request to the Service for an opinion letter on a prototype IRA, SEP, or SIMPLE IRA plan document and will announce when applications may be submitted under the revised prototype IRA opinion letter program. (5) Other guidance (a) Rev. Proc. 2021-30, 2021-31 IRB 172, which modifies and supersedes Rev. Proc. 2019- 19, 2019–19 IRB 1086, sets forth the procedures for correcting qualification and other eligible failures under the Employee Plans Compliance Resolution System (EPCRS). Beginning January 1, 2022, Rev. Proc. 2021-30 modifies the Voluntary Correction Program (VCP) to eliminate the anonymous submission procedure and to establish an option for plan sponsors to request a no-fee anonymous pre-submission conference under specified circumstances. (b) Notice 2019-18, 2019-13 IRB 915, informs taxpayers that the Department of the Treasury (Treasury Department) and the Service do not intend to amend the regulations under § 401(a)(9) to address the use of lump sum payments to replace annuity payments being paid by a qualified defined benefit pension plan. It also provides that the Treasury Department and the Service will continue to study the issue, and until further guidance is issued, the Service will not assert that a plan amendment providing for such a retiree lump-sum window program causes the plan to violate § 401(a)(9). Notice 2019-18 also provides that during this period the Service will not issue letter rulings with regard to lump sum windows. However, if a taxpayer is eligible to apply for and receive a determination letter, the Service will not include a caveat expressing no opinion regarding the tax consequences of such a window in the letter. (c) Rev. Proc. 2020-9, 2020-2 IRB 294, clarifies which amendments are treated as integral to a plan provision that fails to satisfy the final regulations under §§ 401(k) and 401(m) relating to hardship distributions of elective deferrals. Rev. Proc. 2020-9 also extends the deadline applicable to qualified pre-approved plans for adopting interim amendments and integral amendments relating to those regulations, to December 31, 2021. January 3, 2023 172 Bulletin No. 2023–1 (d) Notice 2020-50, 2020-28 IRB 35, provides that employers can choose whether to implement coronavirus-related distribution and loan rules provided under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. 116-136, and notes that qualified individuals can claim the tax benefits of coronavirus-related distribution rules even if plan provisions are not changed. It also provides plan amendment deadlines for section 2202 of the CARES Act. (e) Notice 2020-51, 2020-29 IRB 73, provides guidance relating to the waiver of required minimum distributions (RMDs) in 2020 from certain retirement plans, pursuant to section 2203 of the CARES Act, and provides a sample plan amendment that, if adopted, provides participants a choice on whether or not to receive waived RMDs and certain related payments. (f) Notice 2020-52, 2020-29 IRB 79, clarifies the requirements that apply to a mid-year amendment to a safe harbor § 401(k) or § 401(m) plan that reduces only contributions made on behalf of highly compensated employees. This notice also provides temporary relief in connection with the ongoing Coronavirus Disease 2019 (COVID-19) pandemic from certain requirements that would otherwise apply to a mid-year amendment to a safe harbor § 401(k) or § 401(m) plan adopted between March 13, 2020, and August 31, 2020, that reduces or suspends safe harbor contributions. (g) Notice 2020-68, 2020-38 IRB 567, provides guidance on particular issues with respect to the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) and the Bipartisan American Miners Act of 2019 (Miners Act), Divisions O and M, respectively, under the Further Consolidated Appropriations Act, 2020, Pub. L. 116-94. (h) Notice 2020-86, 2020-53 IRB 1786, provides guidance with respect to sections 102 and 103 of the SECURE Act. Section 102 of the SECURE Act increases the 10 percent cap for automatic enrollment safe harbor plans. Section 103 of the SECURE Act eliminates certain safe harbor notice requirements for plans that provide for safe harbor nonelective contributions and adds new provisions for the retroactive adoption of safe harbor status for those plans. (i) Notice 2022-33, 2022-34 IRB 147, modifies Notice 2020-68 and Notice 2020-86 by extending the deadlines for amending a retirement plan or IRA to reflect certain provisions of the SECURE Act, the Miners Act, and section 2203 of the CARES Act. The deadline for non- governmental plans is December 31, 2025, and the deadline for governmental plans generally is 90 days after the close of the third regular legislative session with the authority to amend the plan that begins after December 31, 2023. (j) Notice 2022-45, 2022-42 IRB 301, modifies Notice 2020-50 by extending the deadlines for amending a retirement plan or IRA to reflect the provisions of section 2202 of the CARES Act and section 302 of Title III of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Relief Act), enacted as Division EE of the Consolidated Appropriations Act, 2021, Pub. L. 116-260, 134 Stat. 1182. Section 2202 of the CARES Act provides special tax treatment with respect to a coronavirus-related distribution and section 302 of the Relief Act provides special tax treatment with respect to a qualified disaster distribution. The deadline for non-governmental plans and IRAs is December 31, 2025, and the deadline for governmental plans generally is 90 days after the close of the third regular legislative session with the authority to amend the plan that begins after December 31, 2023. Updated annually .04 This revenue procedure is updated annually, but it may be modified, amplified, or clarified during the year. Bulletin No. 2023–1 173 January 3, 2023 Possible future updates related to Appeals review . 05 As part of the implementation of the Taxpayer First Act, Pub. L. 116-25 (2019), the Service and the Internal Revenue Service Independent Office of Appeals (Independent Office of Appeals) continue to review current policies and procedures and prior administrative pronouncements. As a result of this review, there may be additional updates to this revenue procedure or other forms of guidance. SECTION 2. WHAT CHANGES HAVE BEEN MADE TO REVENUE PROCEDURE 2022-4? In general . 01 This revenue procedure is a general update of Rev. Proc. 2022-4, 2022-1 IRB 161, which sets forth general information about the types of advice provided by Employee Plans Rulings and Agreements; general procedures for letter ruling and determination letter requests; specific procedures for determination letter requests; and the user fees associated with advice requested from Employee Plans Rulings and Agreements. Procedures and user fees applicable to advice provided by the Commissioner, Tax Exempt and Government Entities, Exempt Organizations Office, are set forth in Rev. Proc. 2023-5, this Bulletin. Changes made to Revenue Procedure 2022-4 .02 In addition to minor non-substantive changes, including changes to dates, cross references, and citations to other revenue procedures, the following changes have been made: (1) Sections 6, 8, 9, 10, 11, 19, and 20 and Appendix B of this revenue procedure are revised to provide the procedures for obtaining a determination letter with respect to a § 403(b) individually designed plan, beginning June 1, 2023. Appendix A adds user fees for these submissions. (2) Sections 6.02 and 16 of this revenue procedure are revised to provide that Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans and Form 5316, Application for Group or Pooled Trust Ruling, may be submitted electronically beginning June 1, 2023, and must be submitted electronically beginning July 1, 2023, including payment of the user fee. (3) Sections 3 and 31 and Appendix A of this revenue procedure reflect the temporary suspension of the opinion letter program for prototype IRAs (traditional, Roth and SIMPLE IRAs), SEPs (including salary reduction SEPs (SARSEPs)), and SIMPLE IRA plans. (4) Section 9.02 of this revenue procedure reflects changes to the scope of determination letters. (5) Appendix A of this revenue procedure has been modified to increase certain user fees. (6) A new Appendix G has been added to this revenue procedure which provides a checklist for applications for nonbank trustee approval letters. PART I. GENERALLY APPLICABLE PROCEDURES SECTION 3. IN WHAT FORM IS ADVICE PROVIDED BY EMPLOYEE PLANS RULINGS AND AGREEMENTS? January 3, 2023 174 Bulletin No. 2023–1 In general . 01 Employee Plans Rulings and Agreements provides advice in the form of letter rulings, closing agreements, compliance statements, determination letters, opinion letters, advisory letters, nonbank trustee approval letters, and oral advice. Letter ruling .02 A “letter ruling” is a written statement issued to a taxpayer by Employee Plans Rulings and Agreements that interprets and applies the tax laws or any nontax laws applicable to employee plans to the taxpayer’s specific set of facts. Once issued, a letter ruling may be revoked or modified for any number of reasons, as described in section 29 of this revenue procedure, unless it is accompanied by a “closing agreement.” Closing agreement .03 A “closing agreement” is a final agreement between the Service and a taxpayer on a specific issue or liability. It is entered into under the authority in § 7121 and is final unless fraud, malfeasance, or misrepresentation of a material fact can be shown. A closing agreement may be entered into if it is advantageous to have the matter permanently and conclusively closed, or if a taxpayer can show that there are good reasons for an agreement and that making the agreement will not prejudice the interests of the Government. In appropriate cases, taxpayers may be asked to enter into a closing agreement as a condition to the issuance of a letter ruling. In appropriate cases, a closing agreement may be entered into with sponsors of pre-approved plans. A closing agreement may also be entered into with respect to retirement plan failures corrected under EPCRS, as set forth in Rev. Proc. 2021-30. Determination letter .04 A “determination letter” is a written statement issued to a taxpayer by Employee Plans Rulings and Agreements that applies the principles and precedents previously announced to a specific set of facts. It is issued only if a determination can be made based on clearly established rules in the statute, a tax treaty, or the regulations, or based on a conclusion in a revenue ruling, opinion, or court decision that represents the position of the Service, and that specifically answers the questions presented. Employee Plans Rulings and Agreements issues determination letters on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans under §§ 401, 403(a), 409, and 4975(e)(7), and (except with respect to an adopting employer of a pre-approved plan requesting a determination letter under section 12 of this revenue procedure) the status for exemption of any related trusts or custodial accounts under § 501(a). Beginning June 1, 2023, Employee Plans Rulings and Agreements will begin accepting determination letter applications for § 403(b) individually designed plans pursuant to the schedule described in section 1.03(1)(a) of this revenue procedure. Opinion letter .05 (1) For applications submitted with respect to the third six-year remedial amendment cycle (and subsequent cycles) for qualified defined contribution and qualified defined benefit plans, an opinion letter is a written statement issued by Employee Plans Rulings and Agreements to a provider or mass submitter as to the qualification in form of a pre-approved plan under § 401, § 403(a), or both § 401 and § 4975(e)(7). See Rev. Proc. 2017-41. (2) An opinion letter will also be issued as to the acceptability of the form of a prototype plan under § 403(b) for Cycle 1 and a pre-approved § 403(b) plan for Cycle 2. See Rev. Proc. 2013-22 and Rev. Proc. 2021-37. Bulletin No. 2023–1 175 January 3, 2023 (3) Announcement 2022-6 temporarily suspends the opinion letter program for prototype IRAs (traditional, Roth and SIMPLE IRAs), SEPs (including salary reduction SEPs (SARSEPs)), and SIMPLE IRA plans. Under the IRA prototype program, an opinion letter will be issued concerning the conformance of a prototype trust, custodial account, or individual annuity with the requirements of § 408(a), (b), (k), or (p) or § 408A, as applicable. See Rev. Proc. 87-50, 1987-2 CB 647; Rev. Proc. 91-44, 1991-2 CB 733; Rev. Proc. 92-38, 1992-1 CB 859; Rev. Proc. 97-29, 1997-1 CB 698; Rev. Proc. 98-59, 1998-2 CB 729; Rev. Proc. 2002-10, 2002-1 CB 401; and Rev. Proc. 2010-48, 2010-50 IRB 828 (pre-approved IRAs), as modified by Appendix A of this revenue procedure. .06 Oral advice is advisory only and is not binding on the Service. The Service does not orally issue rulings or determinations, nor does it issue letter rulings or determination letters in response to oral requests from taxpayers. Service employees ordinarily will discuss with taxpayers or their representatives inquiries about whether the Service will rule on particular issues and about procedural matters regarding the submission of requests for letter rulings or determination letters. Oral advice (1) No oral rulings and no written rulings in r esponse to oral requests. (2) Discussion possible on substantive issues. At the discretion of the Service and as time permits, Service employees may also discuss substantive issues with taxpayers or their representatives. Such a discussion will not bind the Service or the Office of Associate Chief Counsel, and it cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). Service employees who are not directly involved in the examination, appeal, or litigation of particular substantive tax issues will not discuss those issues with taxpayers or their representatives unless the discussion is coordinated with Service employees who are directly involved in the matter. The taxpayer or the taxpayer’s representative ordinarily will be asked whether an oral request for advice or information relates to a matter pending before another office of the Service or before a Federal court. If a tax issue is not under examination, in the Independent Office of Appeals, or in litigation, the tax issue may be discussed even though the issue is affected by a nontax issue pending in litigation. A taxpayer may seek oral technical guidance from a Service employee in a field office or service center when preparing a return or report. The Service does not respond to letters seeking to confirm the substance of oral discussions, and the absence of a response to such a letter is not a confirmation. Nonbank trustee appr oval letters .07 A “nonbank trustee approval letter” is a letter ruling that determines that the applicant is qualified to act as a nonbank custodian pursuant to the requirements of Treas. Reg. § 1.408-2(e)(2) through (5) with respect to plans qualified under § 401(a) (including custodial accounts described in § 401(f)); accounts described in § 403(b)(7); IRAs established under § 408(a), (b), or (h); Roth IRAs established under § 408A; SIMPLE IRAs described in § 408(p); deemed IRAs established under qualified employer plans described in § 408(q); eligible deferred compensation plans under § 457(b); Coverdell educational savings accounts established under § 530; Archer medical savings accounts established under § 220; or Health Savings Accounts established under § 223. An applicant requesting approval as a nonbank trustee must provide Employee Plans Rulings and Agreements with clear and convincing proof that the requirements of the regulations are met. If there is a requirement that the applicant feels is not applicable, the application must provide clear January 3, 2023 176 Bulletin No. 2023–1 Compliance statement and convincing proof that such requirement is not germane to the manner in which the applicant will administer any trust or custodial account. See § 1.408-2(e)(6). To assist Employee Plans Rulings & Agreements in considering an application for nonbank trustee approval, Appendices E and G should be submitted with the request for approval. .08 A “compliance statement” is a binding written agreement between Employee Plans Rulings and Agreements and, generally, the plan sponsor with respect to certain failures of a retirement plan to meet the applicable Code requirements identified by the plan sponsor in a voluntary submission under VCP. The compliance statement addresses the failures identified in the VCP submission, the terms of correction, including any revision of administrative procedures, and the time period within which proposed corrections must be implemented. A compliance statement is conditioned on (i) there being no misstatement or omission of material fact in connection with the submission, and (ii) the implementation of the specific corrections and satisfaction of any other conditions in the compliance statement. See Rev. Proc. 2021-30. .09 An “advisory letter” is issued as to the acceptability of the form of a specimen plan under § 403(b) with respect to an advisory letter application submitted for the first six-year remedial amendment cycle applicable to § 403(b) pre-approved plans (the cycle ending June 30, 2020). See Rev. Proc. 2013-22. Advisory letter SECTION 4. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN ADVICE UNDER THIS PROCEDURE? In general . 01 Taxpayers may request determination letters, letter rulings, and closing agreements on issues within the jurisdiction of Employee Plans Rulings and Agreements under this revenue procedure. Determination Letters .02 Employee Plans Rulings and Agreements issues determination letters on the status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans under §§ 401, 403(a), 409, and 4975(e)(7), and the status for exemption of any related trusts or custodial accounts under § 501(a). See Rev. Proc. 2022-40, which sets forth a description of the determination letter program, including when to submit a request for a determination letter, for individually designed plans, and Rev. Proc. 2016-37 for pre-approved plans. Beginning June 1, 2023, Employee Plans Rulings and Agreements will begin accepting determination letter applications for § 403(b) individually designed plans pursuant to the schedule described in section 1.03(1)(a) of this revenue procedure. Letter Rulings .03 Employee Plans Rulings and Agreements issues letter rulings on the Code sections listed in section 24.01 of this revenue procedure, if appropriate in the interest of sound tax administration, to answer written inquiries of individuals and organizations about their status for tax purposes and the tax effects of their acts or transactions. Voluntary Closing Agreements .04 Employee Plans Rulings and Agreements considers voluntary closing agreement requests to resolve certain income or excise tax issues that are ineligible for resolution under EPCRS. See www.irs.gov/retirement-plans/employee-plans-voluntary-closing-agreements. Other Matters .05 Note that issues involving employee plans not listed in section 24.01 of this revenue procedure generally fall under the jurisdiction of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). See section 5.03 of this revenue procedure and Rev. Proc. 2023-1, this Bulletin. Bulletin No. 2023–1 177 January 3, 2023 SECTION 5. ON WHAT ISSUES MUST WRITTEN ADVICE BE REQUESTED UNDER DIFFERENT PROCEDURES? Pre-approved plans .01 (1) The procedures for obtaining opinion letters for pre-approved plans submitted with respect to the third six-year remedial amendment cycle (and subsequent cycles) are set forth in Rev. Proc. 2017-41. (2) The procedures for obtaining opinion letters for prototype trusts, custodial accounts, or annuities under § 408(a), (b), (k), or (p), or § 408A, are set forth in Rev. Proc. 87-50; Rev. Proc. 91-44; Rev. Proc. 92-38; Rev. Proc. 97-29; Rev. Proc. 98-59; Rev. Proc. 2002-10 and Rev. Proc. 2010-48, as modified by Appendix A of this revenue procedure. Announcement 2022-6 temporarily suspends the opinion letter program. (3) The procedures for obtaining opinion and advisory letters for prototype plans and VS plans under § 403(b) with respect to an opinion or advisory letter application submitted for a § 403(b) pre-approved plan’s first cycle (ending June 30, 2020) are set forth in Rev. Proc. 2013-22. The procedures for obtaining an opinion letter with respect to a § 403(b) pre-approved plan’s second six-year remedial amendment cycle (and subsequent cycles) are set forth in Rev. Proc. 2021-37. Employee Plans Compliance Resolution System Chief Counsel .02 The procedures for obtaining compliance statements under VCP for certain failures of plans qualified under § 401(a), § 403(b) plans, SEPs, SIMPLE IRA Plans, and § 457(b) plans under EPCRS are set forth in Part V of Rev. Proc. 2021-30. .03 The procedures for obtaining letter rulings, information letters, and technical advice requests on matters within the jurisdiction of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), or within the jurisdiction of other Offices of Associate Chief Counsel are set forth in the following revenue procedures: (1) Chief Counsel’s letter rulings and information letters: See Rev. Proc. 2023–1, this Bulletin. (2) Technical Advice Requests: See Rev. Proc. 2023–2, this Bulletin. (3) Chief Counsel’s no-rule positions: See Rev. Proc. 2023–3, this Bulletin. Determination letters not issued for requests for minimum funding waivers .04 The alternative of requesting a determination letter in conjunction with a waiver of the minimum funding standard as described in section 3.04 of Rev. Proc. 2004-15, 2004-1 CB 490, is no longer available. A request for a letter ruling on a waiver of the minimum funding standard must be submitted to the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) and may no longer be submitted to Employee Plans Rulings and Agreements. See Rev. Proc. 2023-1, this Bulletin. January 3, 2023 178 Bulletin No. 2023–1 SECTION 6. WHAT ARE THE GENERAL INSTRUCTIONS FOR REQUESTING LETTER RULINGS AND DETERMINATION LETTERS FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? In general . 01 This section explains the general instructions for requesting letter rulings and determination letters, as applicable to the particular type of request, on all matters within the jurisdiction of Employee Plans Rulings and Agreements. Requests for letter rulings and determination letters require the payment of the applicable user fee discussed in section 6.02(15), section 30, and Appendix A of this revenue procedure. Specific and additional instructions also apply to requests for letter rulings and determination letters on certain matters. All requests must be submitted in English. All documents submitted in support of such requests must be in English or accompanied by an English translation. .02 Certain information r equired in requests for letter rulings or determination letters, as applicable Facts (1) Complete statement of facts and other information. Each request for a letter ruling or determination letter must set forth a complete statement of all facts relating to the transaction or determination letter request. These facts include — (a) names, addresses, telephone numbers, and taxpayer identification numbers of all interested parties (the term “all interested parties” does not mean all shareholders of a widely held corporation requesting a letter ruling relating to a reorganization, or all employees if a large number may be involved); (b) a complete statement of the business reasons for the transaction; and (c) a detailed description of the transaction. The Service usually will not rule on only one step of a larger integrated transaction described in a letter ruling request. See section 25.04 of this revenue procedure. However, if such a letter ruling is requested, the facts and circumstances relating to the entire transaction, including true copies of relevant documents, etc., must be submitted. Documents (2) Copies of all contracts, wills, deeds, agreements, instruments, plan documents, and other documents. All documents that are pertinent to the transaction (including contracts, wills, deeds, agreements, instruments, plan documents, trust documents, and proposed disclaimers) must be submitted with the request. Original documents should not be submitted because they become part of the Service’s file and will not be returned to the taxpayer. Instead, true copies of all such documents should be Bulletin No. 2023–1 179 January 3, 2023 submitted with the request. Each attachment to the request should be labeled alphabetically and attached to the request in alphabetical order. (a) Documents for determination letter submissions on Form 5307 (i) Before June 1, 2023: Applicants must submit Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, submissions on paper. Applicants have the option of submitting the user fee electronically on www.pay.gov, as described in section 30.07(1) of this revenue procedure, and should attach the payment confirmation to the paper Form 8717, User Fee for Employee Plan Determination Letter Request. (ii) On and after June 1, 2023, and before July 1, 2023: Applicants may submit Form 5307 either on paper or electronically on www.pay.gov. If Form 5307 is submitted on paper, applicants still have the option of submitting the user fee electronically on www.pay.gov, as described in section 30.07(1) of this revenue procedure, and should attach the payment confirmation to the paper Form 8717. However, if Form 5307 is submitted electronically on www.pay.gov will require the user fee and documents to be submitted electronically at the time the form is being submitted. Note: When submitting the Form 5307 electronically DO NOT submit the user fee on www. pay.gov using the Form 8717. When utilizing www.pay.gov, if you receive an email that the payment was dishonored, you must resubmit the application package along with the new user fee. When resubmitting, include the email received regarding the dishonored payment with the submission package. (iii) On or after July 1, 2023: Paper submissions of Form 5307 will no longer be accepted. As of July 1, 2023, applicants must submit the Form 5307 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5307 application submitted on paper on or after July 1, 2023, will be returned to the applicant, including any paper checks. In order to more efficiently process determination letter applications, the following documents (as applicable to a particular submission) should be submitted in the following order: • Form 2848, Power of Attorney and Declaration of Representative or Form 8821, Tax Information Authorization • Form 8717, User Fee for Employee Plan Determination Letter Request (for paper submissions only) • Prior Determination Letter • Opinion/Advisory Letter • Form 5307 (must be completed on www.pay.gov on or after July 1, 2023) • Cover Letter • Amendments (any prior plan documents being submitted along with any applicable amendments) • Current Plan Document • Adoption Agreement • Other Applicable Documents (any additional documents not listed above) January 3, 2023 180 Bulletin No. 2023–1 For paper submissions, the most recent version of any applicable form should be submitted. Documents submitted should not be stapled or bound. See also the instructions to the form applicable to a particular submission for any additional submission requirements. For additional information relating to a determination letter request submitted by an adopting employer of a pre- approved plan, see sections 12 and 13 of this revenue procedure. For electronic submissions, the size of the submissions made through www.pay.gov may be up to 15MB. If the submission is over the 15MB threshold, additional documents may be faxed to 844-255-4818. Be sure the www.pay.gov tracking ID number is listed on the fax coversheet along with the EIN, applicant name, and plan name. Faxes sent to the Service are converted into attachments delivered via email to an Outlook mailbox. If the size of the fax creates an attachment that exceeds 150MB it will not be delivered due to network protections. No notification is issued if it occurs. To avoid the problem, split up a large fax by sending separate, smaller faxes. Fax the EP Customer Service line at 855-224-1311 if you want the Service to confirm your fax or faxes have been delivered. (b) Determination letter submissions on Form 5300 Paper submissions of Form 5300, Application for Determination for Employee Benefit Plans are not accepted. Applicants must submit the Form 5300 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5300 application submitted on paper will be returned to the applicant, including any paper checks. Beginning June 1, 2023, Employee Plans Rulings and Agreements will accept Form 5300 applications for § 403(b) individually designed plans. See section 1.03(1) for eligibility. (c) Determination letter submissions on Form 5310 Paper submissions of Form 5310, Application for Determination for Terminating Plan, are not accepted. Applicants must submit the Form 5310 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5310 application submitted on paper will be returned to the applicant, including any paper checks. (d) Documents for determination letter submissions on Form 5300 and Form 5310 In order to more efficiently process determination letter applications, when submitting Form 5300 or Form 5310 on www.pay.gov, the following documents (as applicable to a particular submission) should be included in the attachment: • Form 2848, Power of Attorney and Declaration of Representative or Form 8821, Tax Information Authorization • Prior Determination Letter • Opinion/Advisory Letter • Cover Letter • Amendments (any prior plan documents being submitted along with any applicable amendments) • Current Plan Document • Adoption Agreement • Other Applicable Documents (any additional documents not listed above) Follow the directions provided on www.pay.gov. Note: When utilizing www.pay.gov, if you receive an email that the payment was dishonored, you must resubmit the application package along with the new user fee. When resubmitting, include the email received regarding the dishonored payment with the submission package. Do not use Form 8717 to submit the user fee. Bulletin No. 2023–1 181 January 3, 2023 For additional information relating to a determination letter request for a plan termination, see section 15 of this revenue procedure. The size of electronic submissions made on www.pay.gov may be up to 15MB. If your submission is over the 15MB threshold, additional documents may be faxed to 844-255-4818. The www.pay. gov tracking ID number must be listed on the fax coversheet along with the EIN, applicant’s name, and plan name. Faxes sent to the Service are converted into attachments delivered via email to an Outlook mailbox. If the size of the fax creates an attachment that exceeds 150MB it will not be delivered due to network protections. No notification is issued if it occurs. To avoid the problem, split up a large fax by sending separate, smaller faxes. Fax the EP Customer Service line at 855-224-1311 if you want the Service to confirm your fax or faxes have been delivered. See also the instructions to the form applicable to a particular submission for any additional submission requirements. For additional information relating to a determination letter request submitted by an adopting employer of a pre-approved plan, see sections 12 and 13 of this revenue procedure. Analysis of material facts (3) Analysis of material facts. All material facts in documents must be included, rather than merely incorporated by reference, in the taxpayer’s initial request or in supplemental letters. These facts must be accompanied by an analysis of their bearing on the issue or issues, specifying the legal provisions that apply. Same issue in an earlier return (4) Statement regarding whether same issue is in an earlier return. The request must state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives, the same issue is in an earlier return of the taxpayer (or in a return for any year of a related taxpayer within the meaning of § 267 or of a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504 or of a predecessor of the taxpayer). If the statement is affirmative, it must specify whether the issue— (a) is being examined by the Service; (b) has been examined and, if so, whether or not the statutory period of limitations has expired for either assessing tax or filing a claim for refund or credit of tax; (c) has been examined and, if so, whether or not a closing agreement covering the issue or liability has been entered into by the Service; (d) is being considered by the Independent Office of Appeals in connection with a return from an earlier period; (e) has been considered by the Independent Office of Appeals in connection with a return from an earlier period and, if so, whether or not the statutory period of limitations has expired for either assessing tax or filing a claim for refund or credit of tax; (f) has been considered by the Independent Office of Appeals in connection with a return from an earlier period and whether or not a closing agreement covering the issue or liability has been entered into by the Independent Office of Appeals; January 3, 2023 182 Bulletin No. 2023–1 (g) is pending in litigation in a case involving the taxpayer or a related taxpayer; or (h) is being considered by the Pension Benefit Guaranty Corporation (PBGC) or the Department of Labor (DOL). Same or similar issue previously submitted or currently pending (5) Statement regarding whether same or similar issue was previously ruled on or requested, or is currently pending. The request must also state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives— (a) Employee Plans Rulings and Agreements previously ruled on the same or a similar issue for the taxpayer (or a related taxpayer within the meaning of § 267, or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504 or a predecessor); (b) the taxpayer, a related taxpayer, or a predecessor previously submitted the same or a similar issue to Employee Plans Rulings and Agreements but withdrew the request before a letter ruling or determination letter was issued; (c) the taxpayer, a related taxpayer, or a predecessor previously submitted a request involving the same or a similar issue that is currently pending with Employee Plans Rulings and Agreements or the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes); or (d) at the same time as this request, the taxpayer or a related taxpayer is presently submitting another request involving the same or a similar issue to Employee Plans Rulings and Agreements or the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). If the statement is affirmative for (a), (b), (c), or (d) of this section 6.02(5), the statement must give the date the request was submitted, the date the request was withdrawn or ruled on, if applicable, and other details of the consideration of the issue by Employee Plans Rulings and Agreements or the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). Statement of authorities supporting taxpayer’s views (6) Statement of supporting authorities. If the taxpayer advocates a particular conclusion, an explanation of the grounds for that conclusion and the relevant authorities to support it must also be included. Even if not advocating a particular tax treatment of a proposed transaction, the taxpayer must still furnish views on the tax results of the proposed transaction and a statement of relevant authorities to support those views. In all events, the request must include a statement of whether the law in connection with the request is uncertain and whether and how the issue is addressed by relevant authorities. Statement of authorities contrary to taxpayer’s views (7) Statement of contrary authorities. The taxpayer is also encouraged to inform Employee Plans Rulings and Agreements about, and discuss the implications of, any authority believed to be contrary to the conclusion requested, such as legislation (or pending legislation), tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, or announcements. If the taxpayer determines that there are no contrary authorities, a statement in the request to this effect would be helpful. If the taxpayer does not furnish either contrary authorities or a statement that none exists, Employee Plans Rulings and Agreements, in complex cases or those presenting difficult or novel issues, may request submission of contrary authorities or a statement that none Bulletin No. 2023–1 183 January 3, 2023 exists. Failure to comply with this request may result in Employee Plans Rulings and Agreements refusing to issue a letter ruling or determination letter. Identifying and discussing contrary authorities generally will enable Employee Plans Rulings and Agreements personnel to understand the issue and relevant authorities more quickly. In that case, when Employee Plans Rulings and Agreements personnel receive the request, they will have before them the taxpayer’s thinking on the effect and applicability of contrary authorities. This information should lead to earlier action by Employee Plans Rulings and Agreements. If the taxpayer does not disclose and distinguish significant contrary authorities, Employee Plans Rulings and Agreements may need to request additional information, which will delay action on the request and may result in the application being returned due to being an incomplete submission. Statement identifying pending legislation (8) Statement identifying pending legislation. At the time of filing the request, the taxpayer must identify any pending legislation that may affect the proposed transaction. In addition, the taxpayer must notify Employee Plans Rulings and Agreements if applicable legislation is introduced after the request is filed but before a letter ruling or determination letter is issued. Deletions statement required by § 6110 for private letter rulings and § 403(b) plan determination letters (9) Statement identifying information to be deleted from copy of letter ruling and § 403(b) plan determination letters for public inspection. The text of private letter rulings and determination letters for § 403(b) plans is open to public inspection under § 6110. The Service makes deletions from the text before it is made available for inspection. To help the Service make the deletions required by § 6110(c), a request for a letter ruling or a determination letter for a § 403(b) plan must be accompanied by a statement indicating the deletions desired (“deletions statement”). If the deletions statement is not submitted with the request, a Service representative will tell the taxpayer that the request will be closed if the Service does not receive the deletions statement within 30 calendar days. See section 27.05 of this revenue procedure. (a) Format of deletions statement. A taxpayer who wants only names, addresses, and identifying numbers to be deleted should state this in the deletions statement. If the taxpayer wants more information deleted, the deletions statement must be accompanied by a copy of the request and supporting documents on which the taxpayer should bracket the material to be deleted. The deletions statement must indicate the statutory basis under § 6110(c) for each proposed deletion. If the taxpayer decides to ask for additional deletions before the letter ruling or determination letter is issued, additional deletions statements may be submitted. (b) Location of deletions statement. The deletions statement must not appear in the request, but instead must be made in a separate document and placed on top of the request for a letter ruling or determination letter. (c) Signature. The deletions statement must be signed and dated by the taxpayer or the taxpayer’s authorized representative. A stamped signature or faxed signature is not permitted. (d) Additional information. The taxpayer should follow the same procedures above to propose deletions from any additional information submitted after the initial request. An additional deletions statement, however, is not required with each submission of additional information if the taxpayer’s initial deletions statement requests that only names, addresses, and identifying numbers be deleted, and the taxpayer wants only the same information deleted from the additional information. January 3, 2023 184 Bulletin No. 2023–1 (e) Taxpayer may protest deletions not made. After receiving from the Service the notice under § 6110(f)(1) of intention to disclose the letter ruling or determination letter (including a copy of the version proposed to be open to public inspection and notation of third-party communications under § 6110(d)), the taxpayer may protest the disclosure of certain information in the letter ruling or determination letter. The taxpayer must send a written statement within 20 calendar days to the Service office indicated on the notice of intention to disclose. The statement must identify those deletions that the Service has not made and that the taxpayer believes should have been made. The taxpayer must also submit a copy of the version of the letter ruling or determination letter and bracket the deletions proposed that have not been made by the Service. Generally, the Service will not consider deleting any material that the taxpayer did not propose to be deleted before the letter ruling or determination letter was issued. Within 20 calendar days after the Service receives the response to the notice under § 6110(f) (1), the Service will mail to the taxpayer its final administrative conclusion regarding the deletions to be made. The taxpayer does not have the right to a conference to resolve any disagreements concerning material to be deleted from the text of the letter ruling or determination letter. However, these matters may be taken up at any conference that is otherwise scheduled regarding the request. (f) Taxpayer may request delay of public inspection. After receiving the notice under § 6110(f)(1) of intention to disclose, but within 60 calendar days after the date of notice, the taxpayer may send a request for delay of public inspection under either § 6110(g)(3) or (4). The request for delay must be sent to the Service office indicated on the notice of intention to disclose. A request for delay under § 6110(g)(3) must contain the date on which it is expected that the underlying transaction will be completed. The request for delay under § 6110(g)(4) must contain a statement from which the Commissioner of Internal Revenue may determine that there are good reasons for the delay. (g) Section 6110 does not apply to certain matters. Section 6110(l)(1) states that § 6110 disclosure provisions do not apply to any matter to which § 6104 applies. Therefore, letter rulings, determination letters with respect to qualified plans, and related background file documents dealing with the following matters (covered by § 6104) are not subject to § 6110 disclosure provisions— (i) An application for the qualification of a pension, profit-sharing or stock bonus plan, or an individual retirement account described in § 408 or § 408A, or any application for exemption under § 501(a) by an organization forming part of such a plan or an account; (ii) Any document issued by the Service in which the qualification or exempt status of a plan or account is granted, denied, or revoked; (iii) Any application filed and any document issued by the Service with respect to the qualification or status of pre-approved plans; and (iv) The portion of any document issued by the Service with respect to the qualification or exempt status of a plan or account of a proposed transaction by such plan or account. Signature on request (10) Signature by taxpayer or authorized representative. The request for a letter ruling or determination letter must be signed and dated by the taxpayer or the taxpayer’s authorized representative. For paper applications, neither a stamped signature nor a faxed signature is permitted. Bulletin No. 2023–1 185 January 3, 2023 Authorized representatives (11) Authorized representatives. To sign the request or to appear before the Service in connection with the request, the representative must be one of the following: Attorney (a) An attorney who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as an attorney and current authorization to represent the taxpayer. Certified public accountant (b) A certified public accountant who is qualified to practice in any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as a certified public accountant and current authorization to represent the taxpayer. Enrolled agent (c) An enrolled agent is a person, other than an attorney or certified public accountant that is currently enrolled to practice before the Service and is not currently under suspension or disbarment from practice before the Service, including a person enrolled to practice only for employee plans matters. He or she must file a written declaration with the Service showing current enrollment and authorization to represent the taxpayer. Either the enrollment number or the expiration date of the enrollment card must be included in the declaration. For the rules on who may practice before the Service, see Treasury Department Circular No. 230. Enrolled actuary (d) An enrolled actuary is a person enrolled as an actuary by the Joint Board for the Enrollment of Actuaries pursuant to 29 U.S.C. 1242 and qualified to practice in any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as an enrolled actuary and current authorization to represent the taxpayer. Practice as an enrolled actuary is limited to representation with respect to issues involving the following statutory provisions: §§ 401, 403(a), 404, 412, 413, 414, 419, 419A, 420, 4971, 4972, 4976, 4980, 6057, 6058, 6059, 6652(d), 6652(e), 6692, 7805(b), former § 405, and 29 U.S.C. 1083. Enrolled retirement plan agent (e) An enrolled retirement plan agent (ERPA) is an individual who is authorized to practice before the Service under the ERPA program. The ERPA program is established under Treasury Department Circular No. 230 and is administered by the Office of Professional Responsibility. Practice as an ERPA is limited to representation with respect to issues involving the Employee Plans determination letter program, EPCRS, and the pre-approved programs. In addition, ERPAs are generally permitted to represent taxpayers with respect to Form 5300 series and Form 5500 filings, but not with respect to actuarial forms or schedules. For additional information on ERPAs, see § 10.4, 10.5, and 10.6 of Treasury Department Circular No. 230. A person with a “Letter of Authorization” (f) Any other person, including a foreign representative, who has received a “Letter of Authorization” from the Director, Office of Professional Responsibility under section 10.7(d) of Treasury Department Circular No. 230. A person may make a written request for a “Letter of Authorization” to: Office of Director, Office of Professional Responsibility, Internal Revenue Service, 1111 Constitution Avenue, N.W., Washington, DC 20224. Section 10.7(d) of Treasury Department Circular No. 230 authorizes the Commissioner of Internal Revenue to allow an individual who is not otherwise eligible to practice before the Service to represent another person in a particular matter. For additional information, see section 6.02(12) of this revenue procedure. January 3, 2023 186 Bulletin No. 2023–1 Employee, general partner, bona fide officer, administrator, trustee, etc. ( g) The above requirements do not apply to a regular full-time employee representing his or her employer; to a general partner representing his or her partnership; to a bona fide officer representing his or her corporation, association, or organized group; to a trustee, receiver, guardian, personal representative, administrator, or executor representing a trust, receivership, guardianship, or estate; or to an individual representing his or her immediate family. A preparer of a return (other than a person referred to in paragraph (a), (b), (c), (d), or (e) of this section 6.02(11)) who is not a full-time employee, a general partner, a bona fide officer, an administrator, a trustee, etc., or an individual representing his or her immediate family may not represent a taxpayer in connection with a letter ruling, determination letter, or technical advice request. See section 10.7(c) of Treasury Department Circular No. 230. Foreign representative (h) A foreign representative (other than a person referred to in paragraph (a), (b), (c), (d), or (e) of this section 6.02(11)) is not authorized to practice before the Service and, therefore, may not represent a taxpayer in a request for a letter ruling or a determination letter. In this situation, the nonresident alien or foreign entity must submit the request for a letter ruling or a determination letter on the individual’s or entity’s own behalf or through a person referred to in paragraph (a), (b), (c), (d), or (e) of this section 6.02(11). Power of attorney and declaration of representative (12) Power of attorney and declaration of representative. Any authorized representative, whether or not enrolled to practice, must also comply with the conference and practice requirements of the Statement of Procedural Rules (26 C.F.R. § 601.501-601.509), which provide the rules for representing a taxpayer before the Service. An unenrolled preparer must file a Form 8821, Tax Information Authorization, for certain limited employee plans matters. Form 2848, Power of Attorney and Declaration of Representative, must be used to provide the representative’s authorization (Part I of Form 2848, Power of Attorney) and the representative’s qualification (Part II of Form 2848, Declaration of Representative). The name of the person signing Part I of Form 2848 should also be typed or printed on this form. A stamped signature is not permitted. An original, a copy, or a fax of the power of attorney is acceptable so long as its authenticity is not reasonably disputed. For additional information regarding the Form 2848, see section 6.03(2) of this revenue procedure. Compliance with Treasury Department Circular No. 230 (13) Compliance with Treasury Department Circular No. 230. The taxpayer’s authorized representative, whether or not enrolled, must comply with Treasury Department Circular No. 230, which provides the rules for practice before the Service. In those situations in which Employee Plans Rulings and Agreements believes that the taxpayer’s representative is not in compliance with Treasury Department Circular No. 230, Employee Plans Rulings and Agreements will bring the matter to the attention of the Director, Office of Professional Responsibility. Penalties of perjury statement (14) Penalties of perjury statement. (a) Format of penalties of perjury statement. A request for a letter ruling or determination letter and any change in the request submitted at a later time must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined this request, or this modification to the request, including accompanying documents, and, to the best of my knowledge and belief, the request or the modification contains all the relevant facts relating to the request, and such facts are true, correct, and complete.” See section 27.06 of this revenue procedure for the penalties of perjury statement applicable for submissions of additional information. Applications on www.pay.gov have the following statement: “Under penalties of perjury, I declare that I have examined this determination letter submission, including Form 53XX Bulletin No. 2023–1 187 January 3, 2023 and all accompanying documents, and, to the best of my knowledge and belief, they and the facts presented in support of this application and submission are true, correct, and complete. If the zero dollar user fee is selected, I certify that the application for a determination letter on the qualified status of the plan listed above meets the conditions for exemption from user fees described in section 7528(b)(2)(B) of the Internal Revenue Code. If the reduced fee is selected with respect to an application for a determination letter as to whether a § 403(b) plan meets the requirements of § 403(b), I certify that the application for a determination letter of the plan listed above meets the conditions for a small plan user fee described in Appendix A of Revenue Procedure 2023-4.” If this is a determination letter submission filed by an authorized representative on behalf of a plan sponsor, as provided in an attached Form 2848, the penalty of perjury statement does not apply (although the penalties of perjury box should still be marked). The plan sponsor must sign a separate penalty of perjury statement and submit the statement as an additional attachment. (b) Signature by taxpayer. The declaration must be signed and dated by the taxpayer, not the taxpayer’s representative. Neither a stamped signature nor a faxed signature is permitted. The person who signs for a corporate taxpayer must be an officer of the corporate taxpayer who has personal knowledge of the facts, and whose duties are not limited to obtaining a letter ruling or determination letter from the Service. If the corporate taxpayer is a member of an affiliated group filing consolidated returns, a penalties of perjury statement must also be signed and submitted by an officer of the common parent of the group. The person signing for a trust, a state law partnership, or a limited liability company must be, respectively, a trustee, general partner, or member-manager who has personal knowledge of the facts. Applicable user fee (15) Applicable user fee. Section 7528 requires taxpayers to pay user fees for requests for letter rulings, opinion letters, advisory letters, determination letters, and similar requests. Appendix A to this revenue procedure contains the schedule of user fees for each type of request under the jurisdiction of Employee Plans Rulings and Agreements. Section 30 of this revenue procedure provides guidance for applying the user fee requirements. If two or more taxpayers are parties to a transaction and each requests a letter ruling, each taxpayer must satisfy the rules herein and additional user fees may apply. See section 30.04 of this revenue procedure for exemptions from the user fee requirements. Number of copies of request to be submitted (16) Number of copies of request to be submitted. Generally, a taxpayer needs to submit only one copy of the request for a letter ruling or determination letter. If, however, more than one issue is presented in a letter ruling request, the taxpayer is encouraged to submit additional copies of the request. Further, two copies of the request for a letter ruling are required if— (a) the taxpayer is requesting separate letter rulings on different issues as described in section 6.03(1) of this revenue procedure; (b) the taxpayer is requesting deletions other than names, addresses, and identifying numbers, as described in section 6.02(9) of this revenue procedure (one copy is the request for the letter ruling and the second copy is the deleted version of such request); or January 3, 2023 188 Bulletin No. 2023–1 Sample of a letter ruling request (c) the taxpayer is requesting a closing agreement (as defined in section 3.03 of this revenue procedure) on the issue presented. (17) Sample format for a letter ruling request. To assist a taxpayer or the taxpayer’s representative in preparing a letter ruling request, a sample format for a letter ruling request is provided in Appendix D. This format is not required to be used by the taxpayer or the taxpayer’s representative. If the letter ruling request is not identical or similar to the format in Appendix D, the different format will neither defer consideration of the letter ruling request nor be cause for returning the request to the taxpayer or taxpayer’s representative. Checklist (18) Checklist for letter ruling requests. Employee Plans Rulings and Agreements will be able to respond more quickly to a taxpayer’s letter ruling request if it is carefully prepared and complete. The checklist in Appendix E of this revenue procedure is designed to assist taxpayers in preparing a request by reminding them of the essential information and documents to be furnished with the request. The checklist in Appendix E must be completed to the extent required by the instructions in the checklist, signed and dated by the taxpayer or the taxpayer’s representative, and placed on top of the letter ruling request. If the checklist in Appendix E is not received, Employee Plans Rulings and Agreements will ask the taxpayer or the taxpayer’s representative to submit the checklist, which may delay action on the letter ruling request. A photocopy of this checklist may be used. Additional information requir ed in certain circumstances Multiple issues .03 (1) To request a separate letter ruling for multiple issues in a single situation. If more than one issue is presented in a request for a letter ruling, Employee Plans Rulings and Agreements generally will issue a single letter ruling covering all the issues. However, if the taxpayer requests a separate letter ruling on any of the issues (because, for example, one letter ruling is needed sooner than another), Employee Plans Rulings and Agreements usually will comply with the request unless it is not feasible or not in the best interests of the Service to do so. A taxpayer who wants a separate letter ruling on multiple issues should make this clear in the request and submit two copies of the request. Additional checklists are solely for the specific issues designated. In issuing each letter ruling, Employee Plans Rulings and Agreements will state that it has issued a separate letter ruling or that requests for other letter rulings are pending. Power of attorney (2) Recipient of original letter ruling or determination letter. Employee Plans Rulings and Agreements will send the original of the letter ruling or determination letter to the taxpayer and a copy of the letter ruling or determination letter to the taxpayer’s representative. The letter ruling or determination letter is addressed to the taxpayer. A Form 2848, Power of Attorney and Declaration of Representative must be used to provide the representative’s authorization except in certain employee plans matters. See section 6.02(12) of this revenue procedure. To have a copy sent to taxpayer’s representative. A copy of the letter ruling or determination letter will be sent to any representative with a check in the box in the name and address block on Form 2848 to indicate the representative is to receive notices and communications. Copies of the letter ruling or determination letter, however, will be sent to no more than two representatives. Expedited handling (3) To request expedited handling. Employee Plans Rulings and Agreements ordinarily processes requests for letter rulings and determination letters in the order of the date received. Determination letter requests are not eligible for expedited handling. Expedited handling with respect to a letter ruling request means that the request is processed ahead of the regular order. Bulletin No. 2023–1 189 January 3, 2023 Expedited handling is granted only in rare and unusual cases, both out of fairness to other taxpayers and because Employee Plans Rulings and Agreements seeks to process all requests as expeditiously as possible and to give appropriate deference to normal business exigencies in all cases not involving expedited handling. A taxpayer who has a compelling need to have a letter ruling request processed ahead of the regular order may request expedited handling. This request must explain in detail the need for expedited handling. The request must be made in writing, preferably in a separate letter with, or soon after filing, the request for the letter ruling. If the request is not made in a separate letter, then the letter in which the letter ruling request is made should state, at the top of the first page: “Expedited Handling Is Requested. See page ___ of this letter.” A request for expedited handling of requests for letter rulings will not be forwarded to the appropriate group for action until the check or money order for the user fee in the correct amount is received. Whether the request will be granted is within the discretion of Employee Plans Rulings and Agreements. Employee Plans Rulings and Agreements may grant a request if a factor outside a taxpayer’s control creates a real business need to obtain a letter ruling before a certain time in order to avoid serious business consequences. Examples include situations in which a court or governmental agency has imposed a specific deadline for the completion of a transaction, or a transaction must be completed expeditiously to avoid an imminent business emergency (such as the hostile takeover of a corporate taxpayer), provided that the taxpayer can demonstrate that the deadline or business emergency, and the need for expedited handling, resulted from circumstances that could not reasonably have been anticipated or controlled by the taxpayer. To qualify for expedited handling in such situations, the taxpayer must also demonstrate that the taxpayer submitted the request as promptly as possible after becoming aware of the deadline or emergency. The extent to which the letter ruling request complies with all of the applicable requirements of this revenue procedure, and fully and clearly presents the issues, is a factor in determining whether expedited treatment will be granted. If Employee Plans Rulings and Agreements agrees to process a request out of order, it cannot give assurance that any letter ruling will be processed by the time requested. The scheduling of a closing date for a transaction or a meeting of the board of directors or shareholders of a corporation, without regard for the time it may take to obtain a letter ruling, will not be considered a sufficient reason to process a request ahead of its regular order. Also, the possible effect of fluctuation in the market price of stocks on a transaction will not be considered a sufficient reason to process a request out of order. Because most requests for letter rulings cannot be processed ahead of their regular order, Employee Plans Rulings and Agreements urges all taxpayers to submit their requests well in advance of the contemplated transaction. In addition, in order to facilitate prompt action on letter ruling requests, taxpayers are encouraged to ensure that their initial submissions comply with all of the requirements of this revenue procedure (including the requirements of other applicable guidelines set forth in sections 1.03 and 26.02 of this revenue procedure), and to provide promptly any additional information requested by Employee Plans Rulings and Agreements. Facsimile transmission (fax) (4) To receive a letter ruling by facsimile transmission (fax). A letter ruling ordinarily is not sent by fax. However, if the taxpayer requests, a copy of a letter ruling may be faxed to the taxpayer or the taxpayer’s authorized representative. A letter ruling, however, is not issued until the ruling is mailed. See § 301.6110–2(h). A request to fax a copy of the letter ruling to the taxpayer or the taxpayer’s authorized representative must be made in writing, either as part of the original letter ruling request or prior January 3, 2023 190 Bulletin No. 2023–1 to the approval of the letter ruling. The request must contain the fax number of the taxpayer or the taxpayer’s authorized representative to whom the letter ruling is to be faxed. Employee Plans Rulings and Agreements will take certain precautions to protect confidential information. For example, Employee Plans Rulings and Agreements will use a cover sheet that identifies the intended recipient of the fax and the number of pages transmitted. The cover sheet, if possible, will not identify the specific taxpayer by name, and it will be the first page covering the letter ruling being faxed. Requesting a conference (5) To request a conference. A taxpayer who wants to have a conference on the issues involved in a request for a letter ruling should indicate this in writing when, or soon after, filing the request. Address to send the request .04 The addresses for sending requests are provided in section 31 of this revenue procedure. Pending letter ruling requests .05 (1) Circumstances under which the taxpayer must notify Employee Plans Rulings and Agreements. The taxpayer must notify Employee Plans Rulings and Agreements if, after the letter ruling request is filed but before a letter ruling is issued, the taxpayer knows that— (a) an examination of the issue or the identical issue on an earlier year’s return has been started by an Examinations office of the Service; (b) the issue is being considered by the PBGC or the DOL; or (c) legislation that may affect the transaction has been introduced (see section 6.02(8) of this revenue procedure). (2) Taxpayer must notify Employee Plans Rulings and Agreements if a return is filed and must attach request to return. If the taxpayer files a return before a letter ruling is received from Employee Plans Rulings and Agreements concerning the issue, the taxpayer must notify Employee Plans Rulings and Agreements that the return has been filed. The taxpayer must also attach a copy of the letter ruling request to the return to alert the Employee Plans Examinations office and thereby avoid premature Employee Plans Examinations office action on the issue. When to attach letter ruling to return .06 If, before filing a return, a taxpayer receives a letter ruling about any transaction that is relevant to the return, the taxpayer must attach a copy of the letter ruling to the return when it is filed. How to check on status of request .07 The taxpayer or the taxpayer’s authorized representative may obtain information regarding the status of a request by calling the person whose name and telephone number are shown on the acknowledgement of receipt of the request. Bulletin No. 2023–1 191 January 3, 2023 SECTION 7. WHAT ACTIONS ARE TAKEN IF A REQUEST IS WITHDRAWN OR EMPLOYEE PLANS RULINGS AND AGREEMENTS DECLINES TO ISSUE A LETTER RULING OR DETERMINATION LETTER? In general . 01 A taxpayer may withdraw a request for a letter ruling or determination letter at any time before the letter ruling or determination letter is signed by Employee Plans Rulings and Agreements. Correspondence and exhibits related to a request that is withdrawn or related to a letter ruling request or determination letter request for which Employee Plans Rulings and Agreements declines to issue a letter ruling or determination letter will not be returned to the taxpayer. See section 6.02(2) of this revenue procedure. The processing of a request for a letter ruling or determination letter will not be suspended in Employee Plans Rulings and Agreements at the request of a taxpayer. Notification of appropriate Service official .02 If a taxpayer withdraws a request for a letter ruling, or if Employee Plans Rulings and Agreements declines to issue a letter ruling, Employee Plans Rulings and Agreements will notify the appropriate Service official in the operating division that has examination jurisdiction of the taxpayer’s tax return. Employee Plans Rulings and Agreements also may give the Service official its views on the issues in the request to consider in any later examination of the return. See section 10.15 of this revenue procedure regarding the withdrawal of a determination letter application. Refunds of user fees .03 The user fee will not be returned for a letter ruling or determination letter request that is withdrawn. If Employee Plans Rulings and Agreements declines to issue a letter ruling on all of the issues in the request or declines to issue a determination letter, the user fee will be returned. If Employee Plans Rulings and Agreements, however, issues a letter ruling on some, but not all, of the issues, the user fee will not be returned. PART II. PROCEDURES FOR DETERMINATION LETTER REQUESTS Part IIA. REQUESTING DETERMINATION LETTERS SECTION 8. IN WHA T AREAS ARE DETERMINATION LETTERS ISSUED? Circumstances under which determination letters are issued . 01 Employee Plans Rulings and Agreements issues determination letters in response to taxpayers’ written requests on completed transactions on matters within its jurisdiction. Employee Plans Rulings and Agreements does not issue determination letters on the tax consequences of proposed transactions, except on the qualified status of employee plans under §§ 401, 403(a), 409, and 4975(e)(7), and the exempt status of any related trust under § 501. Beginning June 1, 2023, Employee Plans Rulings and Agreements will accept determination January 3, 2023 192 Bulletin No. 2023–1 letter applications for § 403(b) individually designed plans. See section 1.03(1) of this revenue procedure for eligibility. For information regarding the procedures for obtaining opinion and advisory letters for prototype plans and VS plans under § 403(b) with respect to an application submitted for the first six-year remedial amendment cycle), see Rev. Proc. 2013-22. The procedures for obtaining an opinion letter with respect to a § 403(b) pre-approved plan’s second six-year remedial amendment cycle (and subsequent cycles) are set forth in Rev. Proc. 2021-37 Types of requests .02 Determination letters may be requested on completed and proposed transactions as set forth in the table below: TYPE OF REQUESTFORMSREV . PROC. SECTION 1. Initial Qualification a. Individually-designed plans (including collectively bargained plans and § 403(b) plans) 530011 b. Pre-approved plans5300, 530712 c. Employee Stock Ownership Plans (“ESOPs”)5300, 530911 d. Multiple employer plans (§ 413(c) only)530014 e. Group trusts531616 f. Section 414(x) combined qualified plans530011 2. Termination a. Individually-designed plans (including collectively bargained plans and § 403(b) plans) 5310, 60886, 15 b. Pre-approved plans5310, 60886, 15 c. Multiemployer plan covered by PBGC insurance5300, 6088, Cover letter15 Note: Form 5310-A, Notice of Plan Merger, Consolidation, Spinoff or Transfer of Plan Assets or Liabilities – Notice of Qualified Separate Lines of Business, generally must be filed not less than 30 days before the merger, consolidation or transfer of assets and liabilities. The filing of Form 5310-A will not result in the issuance of a determination letter. 3. Certain Merged Plans Eligible to be Submitted under Rev. Proc. 2022-40 530010.06(2), 11 4. Standardized and Nonstandardized Pre-approved Plans (applicable to determination letter requests submitted pursuant to Rev. Proc. 2017-41, with respect to the third six-year remedial amendment cycle (and subsequent cycles)) a. Adoption of a nonstandardized plan that is not a mul- tiple employer plan, if the adopting employer has not made extensive modifications to the language of the pre-approved plan 530712, 13 b. Adoption of a nonstandardized plan, if the adopting employer has made extensive modifications 530012 c. Adoption of a standardized plan that is not a multiple employer plan, if the employer requests a determination solely on overriding plan language added to satisfy §§ 415 or 416 530712 Bulletin No. 2023–1 193 January 3, 2023 TYPE OF REQUESTFORMSREV. PROC. SECTION d. Adoption of a standardized plan, if the adopting em- ployer has made any modifications other than overrid- ing plan language added to satisfy § 415 or 416 530012 e. Adoption by the controlling member of a qualified multiple employer plan, if the controlling member has made any modifications 530012 f. Adoption of a standardized or nonstandardized pension plan, including a qualified multiple employer plan, if the adopting employer (or, in the case of a multiple employer plan, the controlling member) requests a determination that the plan’s normal retirement age satisfies the requirements of the regulations (final or proposed, as applicable) under § 1.401(a)-1(b)(2)) 530012 5. Special Types of Requests for Qualified Plans a. Leased employees (§ 414(n))5300, Cover letter17 b. Partial termination5300, Cover letter9.09 c. Section 401(h) determination letters5300, Cover letter18 d. Section 420 determination letters including other mat- ters under § 401(a) 5300, Cover letter, Checklist18 e. Section 420 determination letters excluding other mat- ters under § 401(a) 5300, Cover letter, Checklist18 Areas in which determination letters will not be issued .03 Determination letters issued in accordance with this revenue procedure do not include determinations involving the following: (1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 404, 409(l), 409(n), 412, 414(b), 414(c), 414(h)(2), 414(m), 415(m), 457, 511 through 515, and 4975 (other than 4975(e)(7)); (2) Plans or plan amendments for which automatic reliance is granted pursuant to section 7 of Rev. Proc. 2017-41 or section 8 of Rev. Proc. 2021-37; (3) Plan amendments described below (these amendments will, to the extent provided, be deemed not to alter the status of a plan: (a) An amendment solely to permit a trust forming part of a plan to participate in a pooled fund arrangement described in Rev. Rul. 81-100, 1981-1 CB 326, as clarified and modified by Rev. Rul. 2004-67, 2004-2 CB 28; Rev. Rul. 2011-1, 2011-2 IRB 251; Notice 2012-6, 2012-3 IRB 293; and Rev. Rul. 2014-24, 2014-37 IRB 529; (b) An amendment that merely adjusts the maximum limitations under § 415 to reflect annual cost-of-living increases under § 415(d), other than an amendment that adds an automatic cost-of- living adjustment provision to the plan; (c) An amendment to qualified plans solely to include language pursuant to section 403(c) (2) of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) concerning the reversion of employer contributions made as a result of mistake of fact; and January 3, 2023 194 Bulletin No. 2023–1 (4) Determination letter requests with respect to plans that combine an ESOP (as defined in § 4975(e)(7)) with retiree medical benefit features described in § 401(h) (sometimes referred to as an HSOP): (a) In general, determination letters will not be issued with respect to plans that combine an ESOP with another ESOP containing 401(h) features with respect to: (i) whether the requirements of § 4975(e)(7) are satisfied; (ii) whether the requirements of § 401(h) are satisfied; or (iii) whether the combination of an ESOP with an ESOP that contains 401(h) features in a plan adversely affects its qualification under § 401(a); (b) However, an arrangement will not be considered to be covered by this section 8.03(4) if, under the provisions of the plan, the following conditions are satisfied: (i) No individual accounts are maintained in the § 401(h) account (except as required by § 401(h)(6)); (ii) No employer securities are held in the § 401(h) account; (iii) The § 401(h) account does not contain the proceeds (directly or otherwise) of an exempt loan as defined in § 54.4975–7(b)(1)(iii) of the Pension Excise Tax Regulations; and (iv) The amount of actual contributions to provide § 401(h) benefits (when added to actual contributions for life insurance protection under the plan) does not exceed 25 percent of the sum of (1) the amount of cash contributions actually allocated to participants’ accounts in the plan, and (2) the amount of cash contributions used to repay principal with respect to the exempt loan, both determined on an aggregate basis since the inception of the § 401(h) arrangement; and (5) Any issue, if the same issue involving the same taxpayer or a related taxpayer is pending in a case in litigation or before the Independent Office of Appeals. Determination letter applications .04 The Service will accept applications for determination letters for plans seeking initial qualification and terminating plans any time during the year. See section 12 of Rev. Proc. 2022–40. In addition, the Service will accept applications for determination letters for certain individually designed merged plans, provided the conditions described in Rev. Proc. 2022-40 are met. Beginning June 1, 2023, Employee Plans Rulings and Agreements will accept determination letter applications for § 403(b) individually designed plans. See section 1.03(1) of this revenue procedure for eligibility. Review of determination letters .05 Determination letters issued under this revenue procedure generally are not reviewed by any other office of the Service before they are issued. If a taxpayer believes that the conclusion reached in a determination letter is in error, the taxpayer may ask Employee Plans Rulings and Agreements to reconsider the matter or to request technical advice from the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) as described in Rev. Proc. 2023–2, this Bulletin. Bulletin No. 2023–1 195 January 3, 2023 SECTION 9. WHAT IS THE GENERAL SCOPE OF A DETERMINATION LETTER? Scope of this section .01 This section delineates, generally, the scope of a determination letter issued by Employee Plans Rulings and Agreements. This section also identifies certain requirements that are not considered by Employee Plans Rulings and Agreements in its review of a plan and with respect to which determination letters do not provide reliance. This section applies to all determination letters, other than letters relating to group trusts, and certain letters relating solely to the requirements of § 420 (regarding the transfer of assets in a defined benefit plan to a health benefit account described in § 401(h)). For additional information pertaining to the scope of reliance on a determination letter, see section 23 of this revenue procedure. Scope of determination letters .02 (1)(i) General rule for changes in qualification requirements or § 403(b) requirements as defined in Rev. Proc. 2022-40 that have been or will be included on a Required Amendments List. Except as otherwise provided in section 9.02(1)(iii), with respect to ongoing plans, the Service will consider, in reviewing changes in qualification requirements and § 403(b) requirements that have been or will be included on a Required Amendments List, only those changes that appear on a Required Amendments List issued on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted. (ii) General rule for qualification requirements or § 403(b) requirements as defined in Rev. Proc. 2022-40 that have not been and will not be included on a Required Amendments List. Except as otherwise provided in section 9.02(1)(iii), with respect to ongoing plans, the Service will consider, in reviewing qualification requirements and § 403(b) requirements that have not been and will not be included on a Required Amendments List, only those qualification requirements and § 403(b) requirements that are in effect on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted. See Section 10 of Rev. Proc. 2022–40 for further details on the scope of Employee Plans Rulings and Agreements’ review of determination letter applications. (iii) There are no exceptions to the general rules for ongoing plans under section 9.02(1)(i) or (ii) for 2023. See section 10.03 of Rev. Proc. 2022-40. (2) Terminating plans. For terminating plans, the Service will consider the qualification requirements or § 403(b) requirements that apply as of the date of termination, regardless of whether such requirements are included on a Required Amendments List. See sections 5.03(3) and 10.02 of Rev. Proc. 2022-40. Design-based safe harbor .03 Generally, a plan will not be reviewed for, and a determination letter may not be relied on with respect to, whether a plan satisfies the nondiscrimination requirements of § 401(a)(4), the minimum participation requirements of § 401(a)(26), or the minimum coverage requirements of § 410(b). However, if the applicant elects, and the plan document provides a definition of compensation that satisfies § 1.414(s)-1(c), a plan will be reviewed for, and a determination letter may be relied on with respect to, whether the terms of the plan satisfy one of the design-based safe harbors in § 1.401(a)(4)-2(b) (relating to nondiscrimination in amount of contributions) or 1.401(a)(4)-3(b) (relating to nondiscrimination in amount of benefits). A defined contribution plan January 3, 2023 196 Bulletin No. 2023–1 Governmental plans under § 414(d) will also be reviewed for, and a determination letter may be relied on with respect to, whether a plan’s terms satisfy the applicable requirements of §§ 401(k) and 401(m). .04 A plan will not be reviewed for, and a determination letter does not constitute a ruling or determination as to, whether the plan is a governmental plan within the meaning of § 414(d). If a determination letter applicant represents on the application that the plan is a governmental plan within the meaning of § 414(d), the determination letter issued for the plan is predicated on that representation, and the Service’s determination is conditioned on the plan constituting a governmental plan within the meaning of § 414(d). Church plans under § 414(e) .05 A plan will not be reviewed for, and a determination letter does not constitute a ruling or determination as to, whether the plan is a church plan within the meaning of § 414(e). If a determination letter applicant represents on the application that the plan is a church plan within the meaning of § 414(e), the determination letter issued for the plan is predicated on that representation, and the Service’s determination is conditioned on the plan constituting a church plan within the meaning of § 414(e). Tax treatment of certain contributions under § 414(h) .06 A plan will not be reviewed for, and a determination letter does not constitute a ruling or determination as to, whether contributions to the plan satisfy § 414(h). A determination letter does not express an opinion on whether contributions made to a plan treated as a governmental plan defined in § 414(d) constitute employer contributions under § 414(h)(2). Other limits on scope of determination letter .07 A favorable determination letter does not provide reliance for purposes of §§ 404, 412, 430, 431, and 432 with respect to whether an interest rate (or any other actuarial assumption) is reasonable. A favorable determination letter does not constitute a determination with respect to whether any requirements of § 414(r), relating to whether an employer is operating qualified separate lines of business, are satisfied. Leased employees .08 In addition to a determination letter request for a qualified plan, an applicant that is otherwise eligible to submit an application for a determination letter for a qualified plan may submit a cover letter requesting a determination as to whether leased employees are deemed employees of the employer under the meaning of § 414(n), with the additional information set forth in section 17 of this revenue procedure, including the Form 5300, Application for Determination for Employee Benefit Plan. Partial terminations .09 An applicant that seeks a determination as to whether a partial termination has occurred in a qualified plan must file a determination letter application electing such a determination using Form 5300. The applicant may file for a determination as to whether a partial termination has occurred, whether or not the plan is otherwise eligible to be submitted for a determination letter pursuant to section 11.01 or 12.03(3)(b) of this revenue procedure with respect to the third remedial amendment cycle (and subsequent cycles), as long as the scope of the determination letter issued with respect to the plan is limited solely to the request regarding whether a partial termination has occurred. In addition, an adopting employer of a pre-approved plan (or, if the plan is a multiple employer plan, the controlling member (an adopting employer sponsoring a qualified plan that submits the application as the lead employer of the multiple employer plan)) may request a determination limited to whether a partial termination has occurred. Applicants may not request a determination letter with respect to the entire plan unless the plan is otherwise eligible to be submitted for a determination letter. Publication 794, Favorable Determination Letter .10 Publication 794, Favorable Determination Letter, contains other information regarding the scope of a determination letter, including the requirement that all information submitted with the application be retained as a condition of reliance. In addition, the specific terms of each letter may Bulletin No. 2023–1 197 January 3, 2023 further define its scope and the extent to which it may be relied upon. Publication 794 can also be found at https://www.irs.gov/forms-instructions. SECTION 10. WHAT IS THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS? Scope .01 Section 6 of this revenue procedure and this section 10 set forth procedures that are generally applicable to all determination letter requests. Additional procedures for specific types of requests are set forth in sections 11 through 18 of this revenue procedure. Complete information required .02 An applicant requesting a determination letter must file the materials required by this revenue procedure with the Employee Plans Rulings and Agreements Determinations Office (EP Determinations) at the address provided in section 31 of this revenue procedure. The filing of the application, when accompanied by all information and documents required by this revenue procedure, will generally serve to provide EP Determinations with the information required to make the requested determination. However, in making the determination, EP Determinations may require the submission of additional information. If an application is determined by EP Determinations to be procedurally or technically deficient, EP Determinations may decline to process the application and an applicant may be required to resubmit the entire application and pay a new user fee in order to request a determination letter. See section 10.11 of this revenue procedure for additional information. Information submitted to EP Determinations in connection with an application for a determination letter for a qualified plan may be subject to public inspection to the extent provided by § 6104. The applicant must include EPCRS documentation for any closing agreement or compliance statement, if applicable. This includes applicable attachments or model schedules and copies of corrective amendments. Complete copy of plan and applicable amendments required .03 In addition to a copy of the plan and other required materials under this revenue procedure to be included with a determination letter application, the determination letter application must also include a copy of all signed and dated plan amendments (including interim amendments, if applicable) adopted or effective subsequent to the most recent determination letter issued with respect to the plan (other than amendments adopted on behalf of the employer that adopted a pre-approved plan by the practitioner that sponsors the employer’s pre-approved plan) even if these amendments are dated earlier than a previous determination letter issued with respect to the plan. See section 11.04 of this revenue procedure for information on when plan restatements must be included in the application. The application must also include the completed Procedural Requirements Checklist that is set forth in the Form 5300 series, as applicable. Separate application for each single § 414(l) plan (qualified plans only) .04 A separate application is required for each single plan within the meaning of § 414(l). This requirement does not pertain to applications regarding group trusts. Prior letters .05 If the plan (other than a plan submitted for initial determination) has received a favorable determination letter in the past, the application must include a copy of the latest determination letter. If a prior determination letter is not available, an explanation must be included with the application, and the applicant must include a copy of the prior plan or adoption agreement, and the opinion or advisory letter, if applicable. The application also must include all amendments necessary to verify that the plan was amended timely. January 3, 2023 198 Bulletin No. 2023–1 Plans involving mergers (qualified plans only) . 06 If the submitted plan is the result of a merger of two or more qualified plans, the applicant must include a copy of the prior determination letter for each of the plans that were combined to result in the merged plan. The applicant must include a copy of the prior plan document or, if applicable, the adoption agreement, and the opinion or advisory letter for each of the plans. The applicant also must include all amendments necessary to verify that each plan was amended timely. Additionally, for each plan involved in a merger that has a prior determination letter the applicant should only include all signed and dated plan amendments (including interim amendments, if applicable) adopted or effective subsequent to the most recent determination letter issued with respect to the plan. The requirements of this section 10.06 apply regardless of the circumstances under which a determination letter application is submitted. See section 11.01 for circumstances under which determination letter applications may be submitted and section 11.03 of this revenue procedure for additional documents that must be submitted. User fees .07 The appropriate user fee, if applicable, must be paid according to the procedures in section 30 of this revenue procedure. For paper submissions, Form 8717, User Fee for Employee Plan Determination Letter Request, must accompany each determination letter request. In addition, for paper submissions, if the user fee for a determination letter request is paid on www.pay.gov, a copy of the payment confirmation must be submitted along with Form 8717. If the criteria for the qualified plan user fee exemption are met in accordance with Notice 2017-1, 2017-2 IRB 367, the certification on Form 8717 must be signed. Stamped signatures are not acceptable. See sections 6.02(2) and 30.07 of this revenue procedure for procedures relating to electronic submissions made on Form 5300, Application for Determination for Employee Benefit Plan or on Form 5310, Application for Determination for Terminating Plan. For electronic filings, the applicable user fee must be paid on www.pay.gov, as described in section 30.07(1) of this revenue procedure, as part of the electronic filing. DO NOT use the Form 8717 on www.pay.gov to transmit the fee. Interested party/person notification and comment .08 (1) Before filing an application for a qualified plan, the applicant requesting a determination letter must satisfy the requirements of section 3001(a) of ERISA, and § 7476(b)(2) of the Code and the regulations thereunder, which provide that an applicant requesting a determination letter on the qualified status of certain retirement plans must notify interested parties of such application. The general rules with respect to notifying interested parties of requests for determination letters relating to the qualification of plans involving §§ 401 and 403(a) are set out below in sections 19A and 20A of this revenue procedure. (2) Before filing an application for a § 403(b) plan, the applicant must satisfy the requirements for notifying interested persons set forth in sections 19B and 20B of this revenue procedure. Contrary authority must be distinguished .09 If the application for determination involves an issue with respect to which contrary authorities exist, failure to disclose or distinguish such contrary authorities will result in requests for additional information or the determination that the application is not complete and cannot be processed. Employer-employee relationship .10 EP Determinations does not make determinations regarding the existence of an employer- employee relationship as part of its determination of a plan’s satisfaction of applicable requirements, but relies on the applicant’s representations or assumptions, stated or implicit, regarding the existence of such a relationship. Taxpayers are reminded, however, that they may file Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, with the Service to determine the employment status of the individuals involved prior to filing an application for a determination letter. See section 12.04 of Rev. Proc. 2023-1, this Bulletin. Bulletin No. 2023–1 199 January 3, 2023 Incomplete applications .11 This section provides procedures for processing incomplete applications. (1) Procedural Completeness. Upon receipt, an application will be reviewed to determine if it is procedurally complete. In order for an application to be procedurally complete, the application must include all of the information and documents required by this revenue procedure, including, but not limited to, the Form 5300 series application and the Procedural Requirements Checklist. See section 10.03 of this revenue procedure. (2) Procedurally or Technically Deficient Determination Letter Applications – Individually Designed Plans. EP Determinations may request the submission of additional information for a procedurally or technically deficient application. (a) If EP Determinations needs additional information to process the application, the applicant will be sent an information request with a 21-day response date. (b) If the applicant’s response to such information request is not timely or complete, a letter will be sent to the applicant, giving an additional 30-day period in which to respond. (c) If a complete response is not received by the response deadline set forth in the letter referenced in section 10.11(2)(b) of this revenue procedure, the case will be closed. The application will not be returned and any user fee submitted with respect to the application will not be refunded. (3) Procedurally or Technically Deficient Determination Letter Applications – Pre-approved Plans. EP Determinations may request the submission of additional information for a procedurally or technically deficient application submitted by an adopter of a pre-approved plan. (a) If an application submitted by an adopter of a pre-approved plan is procedurally deficient, EP Determinations will send the applicant a letter identifying the missing information. The applicant will have 21 days from the date of the letter to submit the missing information identified. If the missing information is not sent (postmarked) within 21 days of EP Determinations’ letter, the case will be closed. The application will not be returned, and any user fee with respect to the application will not be refunded. (b) If a determination letter application for an adopter of a pre-approved plan is closed pursuant to section 10.11(3)(a) of this revenue procedure, the applicant must resubmit the entire application, including a new user fee (if applicable), by the end of the plan sponsor’s remedial amendment cycle, unless a later date is specified in EP Determinations’ letter. Effect of failure to disclose material fact .12 EP Determinations may determine, based on the application form, the extent of review of the plan document. A failure to disclose a material fact or misrepresentation of a material fact on the application adversely affects the reliance that would otherwise be obtained through issuance by EP Determinations of a favorable determination letter. Similarly, failure to accurately provide any of the information called for on any form required by this revenue procedure may result in no reliance on the determination letter. Where to file requests .13 Requests for determination letters are to be addressed to EP Determinations at the address provided in section 31 of this revenue procedure. Determination letter applications will not be accepted via fax. See sections 6.02(2) and 30.07 of this revenue procedure for procedures relating to electronic submissions made on Form 5300, Application for Determination for Employee Benefit Plan or on Form 5310, Application for Determination for Terminating Plan. Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, January 3, 2023 200 Bulletin No. 2023–1 Submission of related plans and Form 5316, Application for Group or Pooled Trust Ruling, are permitted to be submitted electronically beginning June 1, 2023, and are required to be submitted electronically beginning July 1, 2023. .14 If applications for two or more plans of the same employer are submitted together, each application should include a cover letter that identifies the name of the employer and the plan numbers and employer identification numbers of all the related plans submitted together. EP Determinations will determine whether these applications will be worked simultaneously. Withdrawal of requests .15 The applicant’s request for a determination letter may be withdrawn by a written request at any time prior to the issuance of a final adverse determination letter. If an appeal to a proposed adverse determination letter is filed, a request for a determination letter may be withdrawn at any time prior to the forwarding of the proposed adverse action to the Chief, Independent Office of Appeals. In the case of a withdrawal of a determination request, the Service will not issue a determination of any type. For determination letter requests with respect to qualified plans, a failure to issue a determination letter as a result of a withdrawal will not be considered a failure of the Secretary or his delegate to make a determination within the meaning of § 7476. The Service may consider the information submitted in connection with the withdrawn request in a subsequent examination. Generally, the user fee will not be refunded if the application is withdrawn; however, the applicant may submit a subsequent request for a determination letter pursuant to section 11 of this revenue procedure. The application must be accompanied with the appropriate user fee in accordance with section 30 of this revenue procedure. Any such application will be treated as an initial request. Right to status conference .16 An applicant for a determination letter has the right to have a conference with the Director, EP Rulings and Agreements concerning the status of the application if the application has been pending at least 270 days. The status conference may be by phone or in person, as mutually agreed upon. During the conference, any issues relevant to the processing of the application may be addressed, but the conference will not involve substantive discussion of technical issues. No tape, stenographic, or other verbatim recording of a status conference may be made by any party. Subsequent status conferences may also be requested if at least 90 days have passed since the last preceding status conference. How to request status confer ence .17 A request for a status conference with the Director, EP Rulings and Agreements is to be made in writing and is to be sent to the specialist assigned to review the application or, if the applicant does not know who is reviewing the application, to the Director, EP Rulings and Agreements at the address provided in section 31 of this revenue procedure. Correct format required .18 For paper submissions, documents submitted should not be stapled or bound. The use of quickly removable clips or rubber bands is acceptable. The application form should be prepared using Courier 10-point font. Documents that must be unstapled or unbound may suffer data loss or may not scan properly, which impacts efficiency and delays processing of the application. SECTION 1 1. WHAT IS THE PROCESS FOR REQUESTING DETERMINATION LETTERS FOR INDIVIDUALLY DESIGNED PLANS? Bulletin No. 2023–1 201 January 3, 2023 Requesting determination letters .01 This section 11 contains the procedures for requesting determination letters for individually designed plans for qualified plans, and beginning June 1, 2023, for § 403(b) plans. Determination letters will be issued with respect to individually designed plans solely in the following circumstances: (1) Initial plan determination. See Rev. Proc. 2022-40, section 9.02, for a description of which plans may be submitted on a Form 5300, Application for Determination for Employee Benefit Plan, for initial plan determination; (2) Determination upon plan termination. See section 15 of this revenue procedure and section 9.04 of Rev. Proc. 2022-40 for additional procedures for requesting determination upon plan termination; (3) Merged Plans. Individually designed qualified plan resulting from merged plans of previously unrelated entities, under the conditions set forth in section 9.05 of Rev. Proc. 2022-40; and (4) Certain other circumstances as may be set forth in guidance published in the Internal Revenue Bulletin (see section 9.06 of Rev. Proc. 2022-40). Forms .02 A determination letter request for the items listed in section 11.01 of this revenue procedure is made by filing the appropriate form according to the instructions to the form and any prevailing revenue procedures, notices, and announcements. (1) Form 5300, Application for Determination for Employee Benefit Plan, including a copy of the Procedural Requirements Checklist included therein, must be filed to request a determination letter for an individually designed plan, including a collectively bargained plan. See section 12 of this revenue procedure for circumstances under which an adopting employer that has modified a pre-approved plan may submit a determination letter request. In accordance with Rev. Proc. 2022-40, section 9.02(1), an employer may submit a plan for initial plan qualification on a Form 5300 as long as a favorable determination letter has never been issued with respect to the plan as an individually designed plan. Employers submitting requests on behalf of individually designed plans should file the most recent version of the Form 5300. See sections 6.02(2)(b) and 30.07 of this revenue procedure for procedures relating to electronic submissions made on Form 5300. (2) Form 5309, Application for Determination of Employee Stock Ownership Plan, must be filed as an attachment with a Form 5300 in order to request a determination whether the plan is an ESOP under § 409 or § 4975(e)(7). (3) Form 5310, Application for Determination for Terminating Plan, including a copy of the Procedural Requirements Checklist included therein, must be filed to request a determination for a terminating plan. Also, see section 15 of this revenue procedure for additional procedures pertaining to applications for determination upon plan termination. See sections 6.02(2)(b) and 30.07 of this revenue procedure for procedures relating to electronic submissions. These forms and all related documents must be filed electronically on www.pay.gov, as described in section 30.07(1) of this revenue procedure. (4) Form 8717, User Fee for Employee Plan Determination Letter Request (and the payment confirmation from www.pay.gov as described in section 10.07 of this revenue procedure, if applicable) must be filed with the determination letter application. When completing the form, taxpayers should refer to the applicable Employee Plans user fees listed in Appendix A of this revenue procedure. January 3, 2023 202 Bulletin No. 2023–1 Application must include a copy of plan and amendments (5) Form 2848, Power of Attorney and Declaration of Representative. (6) Form 8821, Tax Information Authorization. .03 The application must include a copy of all signed and dated plan amendments (including interim amendments, if applicable) adopted or effective subsequent to the most recent determination letter issued with respect to the plan, even if these amendments are dated earlier than a previous determination letter issued with respect to the plan. The application must also include a copy of the restated plan, if applicable. The application must also include the appropriate completed Procedural Requirements Checklist as set forth in the Form 5300 series, as applicable. If a plan did not receive a prior favorable determination letter, all plan documents and amendments must be submitted. EP Determinations has the discretion to request copies of any other amendments during its review of a plan. If the submitted plan is the result of a merger of two or more plans, the applicant must include, for each of the plans involved in the merger, a copy of the prior plan document, or if applicable, the adoption agreement, the opinion or advisory letter, and applicable amendments. See section 10.06 of this revenue procedure for further detail on information required for plans involving mergers. Restatements required .04 An individually designed plan must be restated when it is submitted for a determination letter, unless it is a terminating plan. Sponsors of terminating plans are encouraged, but not required, to submit a restatement when submitting a determination letter application. Plans submitted during 2023 must be restated for compliance for the items described in section 9 of this revenue procedure, as applicable. A plan sponsor of a dual-qualified plan that is intended to comply with both the Code and the Código de Rentas Internas para un Nuevo Puerto Rico de la Ley Núm. 1 de 31 de enero de 2011 (“Puerto Rico Code”) must submit a restatement showing compliance with these lists and the qualification requirements of the Code when submitting a determination letter application. Section 414(x) combined plans . 05 EP Determinations will consider § 414(x) in issuing determination letters for individually designed plans that consist of a defined benefit plan and a qualified cash or deferred arrangement (subject to the eligibility requirements in section 11.01 of this revenue procedure). A § 414(x) plan sponsor must submit two Forms 5300 and two applicable user fees. SECTION 12. WHEN MAY AN ADOPTER OF A PRE-APPROVED PLAN (STANDARDIZED OR NONSTANDARDIZED) SUBMIT A DETERMINATION LETTER APPLICATION? Eligibility to apply for a determination letter for a qualified pre-approved plan under Rev. Proc. 2017-41 . 01 Rev. Proc. 2017-41 3 is applicable to providers of pre-approved plans that submit requests for opinion letters with respect to the third six-year remedial amendment cycle (and subsequent cycles). Under Rev. Proc. 2017-41, a pre-approved plan is either a standardized or a nonstandardized plan. This section 12 generally provides guidance on the eligibility of an adopting employer of a pre-approved plan that received an opinion letter, pursuant to Rev. Proc. 2017-41, to submit a determination letter application with regard to that plan. The adoption period for defined benefit pre-approved plans, and the ability for plan sponsors to apply for a determination letter (on Form 3 The application of this section is limited to applications filed on Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, and Form 5300, Application for Determination for Employee Benefit Plan. For procedures for filing a request for a determination on plan termination, see sections 6 and 15 of this revenue procedure. Bulletin No. 2023–1 203 January 3, 2023 Determination letter applications on Form 5307 5300 or 5307) with respect to the third six-year remedial amendment cycle, is expected to begin in 2023, and will be announced in future guidance. .02 (1) Except as provided in section 12.02(3) of this revenue procedure, an adopting employer of a nonstandardized pre-approved plan that has made modifications to the terms of the pre- approved plan that are not extensive, or an adopting employer of any pre-approved plan (either standardized or nonstandardized) that amends its pre-approved plan solely to add language to satisfy the requirements of §§ 415 and 416 due to the required aggregation of plans, may file for a determination letter using a Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans. (2) An adopting employer eligible to file for a determination letter on Form 5307 may file on a Form 5307 regardless of whether a prior favorable determination letter has been issued with respect to the plan. See section 13 of this revenue procedure, which sets forth the procedures for adopting employers of pre-approved plans requesting determination letters on Form 5307. (3) Determination letter requests for the following plans must be filed on Form 5300, Application for Determination for Employee Benefit Plan, regardless of whether they are otherwise described in section 12.02(1) of this revenue procedure: (i) Any request with respect to a multiple employer qualified plan; (ii) A request for a nonstandardized pension plan that is not a governmental plan (within the meaning of § 414(d)) in which the normal retirement age is lower than the age 62 safe harbor in § 1.401(a)-1(b)(2), that requests reliance on whether the plan satisfies § 1.401(a)-1(b)(2); (iii) A request for a nonstandardized pension plan that is a governmental plan (within the meaning of § 414(d)) in which the normal retirement age does not satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, that requests reliance on whether the plan satisfies § 1.401(a)-1(b)(2) of the proposed regulations; and (iv) A request for a nonstandardized plan regarding a partial termination. Determination letter applications on Form 5300 .03 (1) The following adopting employers may file on Form 5300, Application for Determination for Employee Benefit Plan for an initial plan determination under criteria described in section 9.02(1) of Rev. Proc. 2022-40, including the criteria that the plan previously had not been filed for a determination letter on a Form 5300 and had not been issued a determination letter as an individually designed plan: (a) An adopting employer (or, in the case of a multiple employer qualified plan, the controlling member (an adopting employer sponsoring a qualified plan that submits the application as the lead employer of the multiple employer plan)) that makes any modification to a standardized plan. Note: Pursuant to the circumstances described in section 8.06 of Rev. Proc. 2017-41 and 8.05 of Rev. Proc. 2021-37, the plan of an adopting employer of a standardized plan that makes any change to the plan is considered to be an individually designed plan and will be reviewed on the basis of the applicable Required Amendments List. An amendment to add overriding language January 3, 2023 204 Bulletin No. 2023–1 necessary to satisfy § 415 or 416 because of the required aggregation of multiple plans will not cause a plan to fail to be identical to a pre-approved plan. See section 12.04(3) of this revenue procedure regarding the scope of review of a plan. (b) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) that makes extensive modifications to a nonstandardized plan (as set forth in section 8.06 of Rev. Proc. 2017-41 or section 8.05 of Rev. Proc. 2021-37, as applicable); (c) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is not a governmental plan (within the meaning of § 414(d)) in which the normal retirement age under the plan is lower than the age 62 safe harbor, requesting a determination letter, including, but not limited to, whether the plan satisfies § 1.401(a)-1(b)(2); and (d) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is a governmental plan (within the meaning of § 414(d)) in which the normal retirement age does not satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, requesting a determination letter, including, but not limited to, whether the plan satisfies § 1.401(a)-1(b)(2) of the proposed regulations. (2) The following adopting employers, or controlling members, as applicable, may file on Form 5300, regardless of whether a favorable determination letter has been issued with respect to the plan: (a) The controlling member of a nonstandardized multiple employer qualified plan that makes modifications to the nonstandardized multiple employer plan that are not extensive; (b) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is not a governmental plan (within the meaning of § 414(d)), that files a determination letter request that is limited to a determination as to whether a plan’s normal retirement age that is lower than the age 62 safe harbor in § 1.401(a)-1(b)(2) satisfies the requirements of § 1.401(a)-1(b)(2); and (c) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is a governmental plan (within the meaning of § 414(d)) with a normal retirement age that does not satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, that files a determination letter request that is limited to a determination as to whether a plan’s normal retirement age satisfies the requirements of § 1.401(a)-1(b)(2) of the proposed regulations. An adopting employer that submits an application for a determination letter for a pre-approved plan for one or more of the reasons described in this section 12.03(2)) must identify the applicable reason(s) in a cover letter to the application and include a copy of the opinion letter. (3) Special rules. The following special rules apply with regard to the determination letter requests for qualified plans described below: (a) Leased employees. An adopting employer of a standardized or nonstandardized pre- approved qualified plan (or, if the plan is a multiple employer plan, the controlling member) that is eligible to submit a determination letter on Form 5300 in accordance with this section and Rev. Bulletin No. 2023–1 205 January 3, 2023 Proc. 2022-40 may also request a determination regarding leased employee status under § 414(n) (see section 17.05 of this revenue procedure). (b) Partial terminations. An adopting employer of a standardized or nonstandardized pre- approved qualified plan (or, if the plan is a multiple employer plan, the controlling member) that requests a determination regarding partial termination (see section 9.09 of this revenue procedure) must file using Form 5300. If the request is limited to whether a partial termination has occurred, the employer may file on Form 5300 at any time, regardless of whether the employer is otherwise eligible to submit a determination letter application. If the request is not limited to whether a partial termination has occurred, the employer must be otherwise eligible to submit a determination letter application. See section 18 of this revenue procedure for procedures for requesting § 401(h) and § 420 determination letters. See section 8.05 of Rev. Proc. 2017-41 regarding the effect of employer amendments on the six-year remedial amendment cycle. Scope of review .04 (1) Determination letter applications filed on Form 5307 as described in section 12.02 of this revenue procedure will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan. (2) Determination letter applications filed with respect to a nonstandardized plan on Form 5300, as described in section 12.03 of this revenue procedure, will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan. (3) Except as provided in section 12.04(4) of this revenue procedure, determination letter applications filed with respect to a standardized plan on Form 5300, as described in section 12.03 of this revenue procedure, will be reviewed based on the Required Amendments List that was issued during the second calendar year preceding the submission of the determination letter application. (4) Applications filed with respect to a standardized plan requesting a determination solely with respect to: (i) overriding plan language necessary to coordinate the applications of the limitations of § 415 or the requirements of § 416 because the employer maintains multiple plans; (ii) a standardized pension plan (that is not a governmental plan within the meaning of § 414(d)) in which the normal retirement age under the plan is lower than age 62, limited to requesting reliance on whether the plan satisfies the requirements of § 1.401(a)-1(b)(2); or (iii) a standardized pension plan that is a governmental plan (within the meaning of § 414(d)) with a normal retirement age that does not satisfy any of the safe harbors described in § 1.401(a)- 1(b)(2)(v) of the proposed regulations, limited to requesting reliance on whether the plan satisfies the requirements of § 1.401(a)-1(b)(2) of the proposed regulations; will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan. Submission period for pre-approved plans .05 An adopting employer must submit an application for a determination letter (whether on a Form 5300 or Form 5307) during the approximately two-year period in which employers may January 3, 2023 206 Bulletin No. 2023–1 Reliance equivalent to determination letter adopt the pre-approved plan (employer adoption window), as described in section 14.03 of Rev. Proc. 2016-37, except with respect to requests limited to partial terminations, as noted in section 12.03(3)(b) of this revenue procedure. .06 If an employer may rely on a favorable opinion letter pursuant to section 7 of Rev. Proc. 2017-41, the opinion letter is equivalent to a favorable determination letter. For example, the favorable opinion letter is treated as a favorable determination letter as provided in section 23 of this revenue procedure, regarding the effect of a determination letter. Rev. Proc. 2017-41 also describes the extent to which adopting employers of such plans may rely on favorable opinion letters without requesting individual determination letters. SECTION 13. WHAT ARE THE DETERMINATION LETTER FILING PROCEDURES FOR FORM 5307 (QUALIFIED PLANS ONLY)? Scope .01 This section sets forth procedures for requesting determination letters for adopting employers of pre-approved plans that are eligible to submit determination letter applications on Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans. Form 5307 filing procedures .02 Beginning June 1, 2023, applicants may submit the Form 5307 application electronically on www.pay.gov. Beginning July 1, 2023, applicants must submit the Form 5307 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5307 application submitted on paper after June 30, 2023, will be returned to the applicant, including any paper checks. The application for a determination letter submitted on a Form 5307 must include the following: (1) Form 8717, User Fee for Employee Plan Determination Letter Request (for paper submissions only). For electronic submissions, www.pay.gov will require the user fee and documents be submitted electronically at the time the form is being submitted; (2) Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre- Approved Plans, including a copy of the Procedural Requirements Checklist included therein; (3) Form 2848, Power of Attorney and Declaration of Representative, (if applicable, submit Form 8821, Tax Information Authorization); (4) A copy of the most recent opinion letter for the pre-approved plan; (5) A complete copy of the plan and, if applicable, a copy of the completed adoption agreement; (6) A written representation (signature optional) made by the pre-approved plan provider that explains how the nonstandardized plan differs from the approved plan, describing the location, nature, and effect of each deviation from the language of the approved plan; (7) A copy of the plan’s latest favorable determination letter, if applicable; and Bulletin No. 2023–1 207 January 3, 2023 Additional information with respect to ESOPs submitted on Form 5307 (8) Any other information or material that may be required by EP Determinations. Note: EP Determinations may request proof of provider adoption of interim amendments. .03 Form 5307 is being updated for the addition of ESOPs to the program. Until the revised Form 5307 is available, ESOP applications submitted on the current Form 5307 should be completed as follows: • Question 5a should be marked “6 - profit sharing plan;” • The cover letter should state: o That the submission is for an ESOP; o Whether the plan sponsor is an S or C corporation and, if the plan sponsor is an S corporation, the effective date of the S corporation election; o Whether there was a change in corporate status (revocation/election from S to C or from C to S) and, if so, the effective date of such change. Providing the information above will minimize the need for follow-up correspondence with the Service relating to Service review of applications on the current Form 5307. The request in this section 13.03 is limited to ESOP applications submitted on the current Form 5307. Deviations from language of approved plan .04 Deviations from the language of the approved plan will be evaluated based on the extent and complexities of the changes. If the changes are determined to be extensive, EP Determinations will require the applicant to file Form 5300, Application for Determination for Employee Benefit Plan (if the applicant is otherwise eligible to file a Form 5300), and pay the higher user fee. If the changes are too extensive to be compatible with the pre-approved program, the adopting employer’s plan will not be eligible for the pre-approved program. See section 20.03(5) of Rev. Proc. 2016–37 and section 8.06(3) of Rev. Proc. 2017-41. Adoption of plan prior to date of plan’s letter .05 An employer will not be treated as having adopted a pre-approved plan if the employer has signed or otherwise adopted the plan prior to the date of issuance of the pre-approved plan’s opinion letter. See section 7.03(2) of Rev. Proc. 2017-41. In this case, the determination letter application for the employer’s plan may not be filed on Form 5307 and will not be eligible for a reduced user fee. A determination letter application for a pre-approved plan must be based on the pre-approved plan with any applicable modifications. Timing of determination letter applications for adopting employers of pre- approved plans .06 In accordance with section 14 of Rev. Proc. 2016-37, adopting employers of pre-approved plans have a six-year remedial amendment cycle. An adopting employer of a nonstandardized plan that makes changes to the plan that are not extensive must submit the determination letter application within the employer adoption window announced by the Service, as described in section 14.03 of Rev. Proc. 2016-37. Applications submitted outside of that employer adoption window will be returned. SECTION 14. WHAT ARE THE DETERMINATION LETTER FILING PROCEDURES FOR MULTIPLE EMPLOYER PLANS (QUALIFIED PLANS ONLY)? January 3, 2023 208 Bulletin No. 2023–1 Scope . 01 This section sets forth procedures for applications filed with respect to plans described in § 413(c). A plan is not described in § 413(c) if all the employers maintaining the plan are members of the same controlled group or affiliated service group under § 414(b), (c), or (m). Applicant must request letter for plan in the name of the controlling member .02 (1) A determination letter applicant for a multiple employer plan that is otherwise eligible to apply for a determination letter must request a letter for the plan in the name of the adopting employer sponsoring a plan that submits the application as the lead employer of the multiple employer plan (controlling member). An applicant requesting a letter for the plan submits one Form 5300, Application for Determination of Employee Benefit Plan, for the plan in the name of the controlling member, either including or omitting the design-based safe harbor questions. A participating employer maintaining a multiple employer plan may not request its own determination letter but may rely on a favorable determination letter issued to the controlling member, except with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b), and 414(s), and, if the participating employer maintains or has ever maintained another plan, §§ 415 and 416. (2) A determination letter for a multiple employer plan issued pursuant to this revenue procedure will provide reliance for purposes of the requirements of § 413(c); 4 however, pending issuance of final regulations under § 413(e), a favorable determination letter for a multiple employer plan will not provide reliance for purposes of § 413(e). An applicant that has a determination letter application for a multiple employer plan pending with the Service as of January 3, 2022, may withdraw the pending application, receive a refund of the user fee relating to the application, and resubmit the application following the issuance of final regulations under § 413(e). If the withdrawn application had been submitted for initial qualification of the plan, the resubmission of that application will not cause the application to fail to be considered as an application for initial qualification. Wher e to file requests .03 The application must be sent to the address provided in section 31 of this revenue procedure. See Appendix A, section .07(1)(d) and (e) of this revenue procedure for the applicable user fee. Addition of employers .04 The controlling member may continue to rely on its favorable determination letter after another employer commences participation in the controlling member’s multiple employer plan. An employer that commences participation in the multiple employer plan after the controlling member receives a favorable determination letter may rely on the determination letter of the controlling member. SECTION 15. WHAT ARE THE PROCEDURES FOR FILING A REQUEST FOR A DETERMINATION UPON TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS, NOTICE OF MERGER, CONSOLIDATION, ETC.? Scope .01 This section sets forth procedures for requesting determination letters involving plan termination or discontinuance of contributions. This section also contains procedures regarding required notices of merger, consolidation, or transfer of assets or liabilities. 4 For more information pertaining to the scope of reliance on a determination letter, see section 23 of this revenue procedure. Bulletin No. 2023–1 209 January 3, 2023 Required forms .02 (1) Form 5310, Application for Determination for Terminating Plan, including a copy of the Procedural Requirements Checklist included therein, is filed by plans other than multiemployer plans covered by the insurance program of the PBGC. This form must be filed electronically on www.pay.gov. Paper forms will not be accepted. (2) Form 5300, Application for Determination of Employee Benefit Plan, including a copy of the Procedural Requirements Checklist included therein, is filed in the case of a qualified multiemployer plan covered by PBGC insurance. This form must be filed electronically on www. pay.gov. Paper forms will not be accepted. (3) Form 6088, Distributable Benefits from Employee Pension Benefit Plans, is filed (as applicable) in addition to Form 5310 or 5300 by a sponsor or plan administrator of a qualified defined benefit plan or a qualified underfunded defined contribution plan that files an application for a determination letter regarding plan termination. For collectively bargained qualified plans, a Form 6088 is required only if the plan benefits employees who are not collectively bargained employees within the meaning of § 1.410(b)-6(d). A separate Form 6088 is required for each employer employing such employees. See the instructions for Form 6088 for information required to be submitted along with the form, including a statement explaining how plan present values were determined. (4) Form 5310-A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities – Notice of Qualified Separate Lines of Business, if required, generally must be filed not later than 30 days before a merger, consolidation, or transfer of assets and liabilities. The filing of Form 5310-A will not result in the issuance of a determination letter. (5) Form 8717, User Fee for Employee Plan Determination Letter Request (and the payment confirmation from www.pay.gov as described in section 10.07 of this revenue procedure, if applicable). For electronic submissions on Form 5310 or Form 5300, www.pay.gov should be utilized for payment. See section 6 of this revenue procedure. (6) Form 2848, Power of Attorney and Declaration of Representative. If applicable, submit Form 8821, Tax Information Authorization. (7) Schedule SB (Form 5500), Single-Employer Defined Benefit Plan Actuarial Information, for defined benefit plans. Supplemental information .03 The application for a determination letter involving plan termination must also include any supplemental information or schedules required by the forms or form instructions. For example, the application must include copies of all records of actions taken to terminate the plan (such as a resolution of the board of directors) and a schedule providing certain information regarding employees who separated from vesting service with less than 100% vesting. In cases involving the termination of plans that contain a § 401(h) feature, a cover letter must accompany the submission, and it must reference the § 401(h) feature to clarify that this feature is part of the termination application. The cover letter must specifically state the location of plan provisions that relate to the § 401(h) feature. January 3, 2023 210 Bulletin No. 2023–1 Compliance with Title IV of ERISA In the case of the termination of a multiemployer plan, there must be a cover letter accompanying the submission that specifies that it is an application for a termination of a multiemployer plan. .04 In the case of plans subject to Title IV of ERISA, a favorable determination letter issued in connection with a plan’s termination is conditioned on approval that the termination is a valid termination under Title IV of ERISA. Notification by the PBGC that a plan may not be terminated will be treated as a material change of fact. Termination prior to time for amending for change in law .05 A plan that terminates after the effective date of a change in law, but prior to the date that amendments related to the change in law are otherwise required, must be amended to comply with the applicable provisions of law from the date on which such provisions become effective with respect to the plan. Because such a terminated plan would no longer be in existence by the required amendment date and therefore could not be amended on that date, such plan must be amended in connection with the plan termination to comply with those provisions of law that become effective with respect to the plan on or before the date of plan termination. Such amendments include any amendments made after the date of plan termination that were required in order to obtain a favorable determination letter. In addition, annuity contracts distributed from such terminated plans must meet all the applicable provisions of any change in law. See section 7 of Rev. Proc. 2022-40. An application is deemed to be filed in connection with plan termination if it is filed no later than the later of (i) one year after the effective date of the termination, or (ii) one year after the date on which the action terminating the plan is adopted. However, in no event may the application be filed later than 12 months from the date of distribution of substantially all plan assets in connection with the termination of the plan. Restatement not r equired for terminating plan SECTION 16. WHAT ARE THE DETERMINATION LETTER FILING PROCEDURES FOR GROUP TRUSTS? Scope .06 An applicant for a terminating plan is encouraged to submit a restatement when applying for a determination letter; however, a restatement for a terminating plan generally is not required. .01 This section provides special procedures for requesting a determination letter on the status of a group trust under Rev. Rul. 81-100, as clarified and modified by Rev. Rul. 2004-67, Rev. Rul. 2011-1, Notice 2012-6, Rev. Rul. 2014-24, and section 336(e) of the Protecting Americans from Tax Hikes Act of 2015, Division Q of Consolidated Appropriations Act, 2016, Pub. L. 114-113 (PATH Act). Required information .02 Beginning June 1, 2023, applicants may submit the Form 5316 application electronically through www.pay.gov. Beginning July 1, 2023, applicants must submit the Form 5316 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5316 application submitted on paper after June 30, 2023, will be returned to the applicant, including any paper checks. Note: When utilizing www.pay.gov, if an applicant receives an email that the payment was dishonored, the applicant must resubmit the application package along with the new user fee. When resubmitting, include the email received regarding the dishonored payment with the submission package. Do not use Form 8717 to submit the user fee. A request for a determination letter with respect to a group trust is made by submitting a Form 5316, Application for Group or Pooled Trust Ruling, demonstrating how the group trust satisfies the criteria listed in Rev. Rul. 2011-1, together with the trust instrument and related documents. Bulletin No. 2023–1 211 January 3, 2023 Rev. Rul. 2004-67 extends the ability to participate in group trusts to eligible governmental plans under § 457(b) and clarifies the ability of certain individual retirement accounts under § 408 to participate. Rev. Rul. 2011-1 extends the ability to participate in group trusts to custodial accounts under § 403(b)(7), retirement income accounts under § 403(b)(9), and governmental retiree benefit plans under § 401(a)(24). There are two model amendments in Rev. Rul. 2011-1. Amendment 1 is for a group trust that received a determination letter from EP Determinations prior to January 10, 2011, that the group trust satisfies Rev. Rul. 81-100, but that does not satisfy the separate account requirement of paragraph (6) of the holding of Rev. Rul. 2011-1. Amendment 2 is for a group trust that received a determination letter from EP Determinations prior to January 10, 2011, that the group trust satisfies Rev. Rul. 81-100, as modified by Rev. Rul. 2004-67, and that intends to permit custodial accounts under § 403(b)(7), retirement income accounts under § 403(b)(9), or § 401(a)(24) governmental retiree benefit plans to participate in the group trust. Rev. Rul. 2014-24 extends the ability to participate in a group trust to certain retirement plans qualified only under the Puerto Rico Code, and clarifies that assets held by certain separate accounts maintained by insurance companies may be invested in group trusts that satisfy Rev. Rul. 81-100. Section 336(e) of the PATH Act modifies the rules for investment by certain church plan entities in a group trust. Required forms .03 (1) Form 8717, User Fee for Employee Plan Determination Letter Request (for paper submissions only). For electronic submissions, www.pay.gov will require the user fee and documents to be submitted electronically at the time the form is being submitted. For document requirements, “See ‘What to File’ in the Instructions to Form 5316 for a list of what to include in the submission, www.irs.gov/pub/irs-pdf/f5316.pdf. (2) Form 2848, Power of Attorney and Declaration of Representative. If applicable, submit Form 8821, Tax Information Authorization. (3) Form 5316, Application for Group or Pooled Trust Ruling, including a copy of the Procedural Requirements Checklist. SECTION 17. WHAT ARE THE PROCEDURES FOR FILING A REQUEST FOR A DETERMINATION OF LEASED EMPLOYEE STATUS (QUALIFIED PLANS ONLY)? Scope .01 This section provides procedures for determination letter requests on whether an employee is a leased employee and is deemed to be an employee of the recipient employer for qualification purposes under § 414(n). With respect to an individually designed qualified plan, an applicant may include in its request for a determination letter a request on whether an employee is a leased employee and is deemed to be an employee of the recipient employer for qualification purposes under § 414(n) only if the plan is otherwise eligible to be submitted for a determination letter pursuant to section 11.01 of this revenue procedure. Employer must request the determination under § 414(n) .02 Generally, a determination letter will indicate whether an employee is a leased employee and is deemed to be an employee of the recipient employer under § 414(n) only if the employer requests such determination and submits with the determination letter application the information specified in section 17.06 of this revenue procedure. January 3, 2023 212 Bulletin No. 2023–1 Forms . 03 Form 5300, Application for Determination of Employee Benefit Plan, is submitted for a request for a determination letter that includes a request on leased employee status. Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, cannot be used for this purpose. In addition to the Form 5300, there must be a cover letter accompanying the submission, specifying that it is an application for determination of leased employee status. Employer is responsible for determining continuing status under § 414(n) .04 A determination letter on leased employee status under § 414(n) is based solely on the facts submitted at the time of the application. An employer that is the recipient of services of leased employees within the meaning of § 414(n) is responsible for determining, at any other time, whether it meets the requirements of § 401(a), and if a leased employee is deemed to be an employee of the recipient for qualified plan purposes. Pre-approved plans .05 An employer that has adopted a pre-approved plan and that is otherwise eligible to submit a determination letter request pursuant to section 12.03 of this revenue procedure may request a determination with respect to § 414(n). The employer must submit with Form 5300 the information required by section 17.06 of this revenue procedure and any other materials necessary for EP Determinations to make a determination. If an employer that has adopted a pre-approved plan requests a determination regarding leased employees, the plan will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan. Required information for § 414(n) determination .06 A determination letter will be issued with respect to § 414(n) only if the employer requests and is otherwise eligible to receive such a determination, and the application includes: (1) A description of the nature of the business of the recipient organization; (2) A copy of the relevant leasing agreement(s); (3) A description of the function of all leased employees within the trade or business of the recipient organization (including data as to whether all leased employees are performing services on a substantially full-time basis); (4) A description of facts and circumstances relevant to a determination of whether such leased employees’ services are performed under primary direction or control by the recipient organization (including whether the leased employees are required to comply with instructions of the recipient about when, where, and how to perform the services, whether the services must be performed by particular persons, whether the leased employees are subject to the supervision of the recipient, and whether the leased employees must perform services in the order or sequence set by the recipient); and (5) If the recipient organization is relying on any qualified plan(s) maintained by the employee leasing organization for purposes of qualification of the recipient organization’s plan, a description of such plan(s) (including a description of the contributions or benefits provided for all leased employees that are attributable to services performed for the recipient organization, plan eligibility, and vesting). SECTION 18. WHAT ARE THE PROCEDURES FOR REQUESTING § 401(h) AND § 420 DETERMINATION LETTERS? Bulletin No. 2023–1 213 January 3, 2023 Scope .01 This section provides procedures for requesting determination letters (i) with respect to whether the requirements of § 401(h) are satisfied in a plan with retiree medical benefit features, and (ii) on plan language that permits, pursuant to § 420, the transfer of assets in a defined benefit plan to a health benefit account described in § 401(h) or to an applicable life insurance account in the plan. Required information for § 401(h) determination .02 EP Determinations will issue a determination letter that considers whether the requirements of § 401(h) are satisfied in a plan with retiree medical benefit features only if the plan sponsor requests such a determination, the plan sponsor is otherwise eligible to apply for a determination letter, and the plan sponsor’s application includes (in addition to the application forms and any other material required by this revenue procedure) a cover letter that requests consideration of § 401(h). The cover letter must specifically state that consideration is being requested with regard to § 401(h) in addition to other matters under § 401(a) and must specifically state the location of plan provisions that satisfy the requirements of § 401(h) (Part I of the checklist in Appendix C of this revenue procedure must be used to identify the location of relevant plan provisions). Required information for § 420 determination .03 EP Determinations will consider the qualified status of certain plan language designed to comply with § 420 only if the plan sponsor requests such consideration with Form 5300, Application for Determination of Employee Benefit Plan. The cover letter must specifically state (i) whether consideration is being requested only with regard to § 420, or (ii) whether consideration is being requested with regard to § 420 in addition to other matters under § 401(a) (if consideration of other matters under § 401(a) is being requested, the application forms and other materials required by this revenue procedure must also be submitted). The cover letter must specifically state the location of plan provisions that satisfy each of the following requirements (Parts I and II of the checklist in Appendix C of this revenue procedure must be used to identify the location of relevant plan provisions). (1) The plan must include a health benefits account as described in § 401(h). (2) The plan must provide that transfers shall be limited to transfers of “excess assets” as defined in § 420(e)(2). (3) The plan must provide that only one transfer may be made in a taxable year. However, if there is a transfer from a defined benefit plan to both a health benefits account and to an applicable life insurance account in the same taxable year, both transfers are treated as one transfer. (4) The plan must provide that the amount transferred will not exceed the amount that is reasonably estimated to be the amount the employer will pay out (whether directly or through reimbursement) of the health benefit account and applicable life insurance account during the taxable year of the transfer for “qualified current retiree liabilities,” as defined in § 420(e)(1). (5) The plan must provide that no transfer will be made after December 31, 2025. (6) The plan must provide that any assets transferred, and any income allocable to such assets, will be used only to pay qualified current retiree health liabilities for the taxable year of transfer. (7) The plan must provide that any amounts transferred to a health benefits account (and income attributable to such amounts) or an applicable life insurance account that are not used to pay qualified current retiree health liabilities will be transferred back to the defined benefit portion of the plan. January 3, 2023 214 Bulletin No. 2023–1 (8) The plan must provide that the amounts paid out of a health benefits account will be treated as paid first out of transferred assets and income attributable to those assets. (9) The plan must provide that the accrued pension benefits for participants and beneficiaries must become nonforfeitable as if the plan had terminated immediately prior to the transfer (or in the case of a participant who separated during the 1-year period ending on the date of transfer immediately before such separation). In the case of a transfer described in § 420(b)(4) that relates to a prior year, the plan must provide that the accrued benefit of a participant who separated from service during the taxable year to which such transfer relates will be recomputed and treated as nonforfeitable immediately before such separation. (10) The plan must provide that a transfer will be permitted only if each group health plan or arrangement under which health benefits are provided contains provisions satisfying § 420(c) (3). The plan must define “applicable employer cost,” “cost maintenance period,” and “benefit maintenance period,” as applicable, consistent with § 420(c)(3), as amended. The plan may provide that § 420(c)(3) is satisfied separately with respect to individuals eligible for benefits under Title XVIII of the Social Security Act at any time during the taxable year and with respect to individuals not so eligible, and separately for applicable life insurance benefits with respect to individuals 65 or older at any time during the taxable year and with respect to individuals under age 65 during the taxable year. (11) The plan must provide that transferred assets will not be used for key employees (as defined in § 416(i)(1)). PART IIB. INTERESTED PARTY AND INTERESTED PERSON NOTICE AND COMMENT SECTION 19A. WHAT RIGHTS T O NOTICE AND COMMENT DO INTERESTED PARTIES HAVE (QUALIFIED PLANS ONLY)? Rights of interested parties . 01 Persons who qualify as interested parties under § 1.7476–1(b) with respect to a qualified plan have the following rights: (1) To receive notice, in accordance with section 20A of this revenue procedure, that an application for an advance determination will be filed regarding the qualification of plans described in §§ 401, 403(a), 409, and/or 4975(e)(7); (2) To submit written comments with respect to the qualification for such plans to the Service; (3) To request the DOL to submit a comment to the Service on behalf of the interested parties; and (4) To submit written comments to the Service on matters with respect to which the DOL was requested to comment but declined. Comments by interested parties .02 Comments submitted by interested parties must be received by EP Determinations by the 45th day after the day on which the application for determination is received by EP Determinations Bulletin No. 2023–1 215 January 3, 2023 (however, see sections 19A.03 and 19A.04 of this revenue procedure for filing deadlines in cases in which the DOL has been requested to comment). Such comments must be in writing and signed by the interested parties or by an authorized representative of such parties (as provided in section 6.02(11) of this revenue procedure), and addressed to: • Internal Revenue Service • EP Determinations • Attn: Customer Service Manager • P.O. Box 2508 • Cincinnati, OH 45202 Comments must contain the following information: (1) The names of the interested parties making the comments; (2) The name and taxpayer identification number of the applicant for a determination; (3) The name of the plan, the plan identification number, and the name of the plan administrator; (4) Whether the parties submitting the comment are: (a) Employees eligible to participate under the plan; (b) Employees with accrued benefits under the plan, or former employees with vested benefits under the plan; (c) Beneficiaries of deceased former employees who are eligible to receive or are currently receiving benefits under the plan; or (d) Employees not eligible to participate under the plan; (5) The specific matters raised by the interested parties on the question of whether the plan meets the requirements for qualification involving §§ 401 and 403(a), and how such matters relate to the interests of the parties making the comment; and (6) The address of the interested party submitting the comment (or if a comment is submitted jointly by more than one party, the name and address of a designated representative) to which all correspondence, including a notice of the Service’s final determination with respect to plan’s qualification should be sent. (The address designated for notice by the Service will also be used by the DOL in communicating with the parties submitting a request for comment). The designated representative may be one of the interested parties submitting the comment or an authorized representative. If two or more interested parties submit a single comment and one person is not designated in the comment as the representative for receipt of correspondence, a notice of determination mailed to any interested party who submitted the comment shall be notice to all the interested parties who submitted the comment for purposes of § 7476(b)(5). January 3, 2023 216 Bulletin No. 2023–1 Requests for DOL to submit comments .03 A request to the DOL to submit to EP Determinations a comment pursuant to section 3001(b)(2) of ERISA must be made in accordance with the following procedures. (1) The request must be received by the DOL by the 25th day after the day the application for determination is received by EP Determinations. However, if the parties requesting the DOL to submit a comment wish to preserve the right to comment to EP Determinations in the event the DOL declines to comment, the request must be received by the DOL by the 15th day after the day the application for determination is received by EP Determinations. (2) The request to the DOL to submit a comment to EP Determinations must: (a) Be in writing; (b) Be signed as provided in section 19A.02 of this revenue procedure; (c) Contain the names of the interested parties requesting the DOL to comment and the address of the interested party or designated representative to whom all correspondence with respect to the request should be sent (see also section 19A.02(6) of this revenue procedure); (d) Contain the information prescribed in section 19A.02(2), (3), (4), (5), and (6) of this revenue procedure; (e) Indicate that the application was or will be submitted to EP Determinations at the address provided in section 31 of this revenue procedure; (f) Contain a statement of the specific matters upon which the DOL’s comment is sought, as well as how such matters relate to the interested parties making the request; and (g) Be addressed as follows: • Deputy Assistant Secretary • Employee Benefits Security Administration • U.S. Department of Labor • 200 Constitution Avenue, N.W. • Washington, D.C. 20210 • Attention: 3001 Comment Request Right to comment if DOL declines to comment .04 If a request described in section 19A.03 of this revenue procedure is made and the DOL notifies the interested parties making the request that it declines to comment on a matter concerning qualification of the plan which was raised in the request, the parties submitting the request may still submit a comment to EP Determinations on such matter. The comment must be received by the later of the 45th day after the day the application for determination is received by EP Determinations or the 15th day after the day on which notification is given by the DOL that it declines to submit a comment on such matter (see section 19A.07 of this revenue procedure for the date of notification). In no event may the comment be received later than the 60th day after the day the application for determination was received. Such a comment must comply with Bulletin No. 2023–1 217 January 3, 2023 Confidentiality of comments the requirements of section 19A.02 of this revenue procedure and include a statement that the comment is being submitted on matters raised in a request to the DOL upon which the DOL declined to comment. . 05 For rules regarding the confidentiality of contents of written comments submitted by interested parties to the Service pursuant to section 19A.02 or 19A.04 of this revenue procedure, see § 601.201(o)(5) of the Statement of Procedural Rules. Availability of comments .06 For rules regarding the availability to the applicant of copies of all comments on the application submitted pursuant to section 19A.01(1), (2), (3), and (4) of this revenue procedure, see § 601.201(o)(5) of the Statement of Procedural Rules. When comments are deemed made .07 An application for an advance determination, a comment to EP Determinations, or, in the case of a request to the DOL, shall be deemed made when it is received by EP Determinations or the DOL, as applicable. Notification by the DOL that it declines to comment shall be deemed given when it is received by the interested party or designated representative. The notice described in section 20A.01 of this revenue procedure shall be deemed given when it is posted or sent to the person in the manner described in § 1.7476–2. In the case of an application, comment, request, notification, or notice that is sent by mail or a private delivery service that has been designated under § 7502(f), the date as of which it shall be deemed received will be determined under § 7502. However, if such an application, comment, request, notification, or notice is not received within a reasonable period from the date determined under § 7502, the immediately preceding sentence will not apply. SECTION 19B. WHA T NOTICE REQUIREMENTS APPLY TO INTERESTED PERSONS (§ 403(b) PLANS ONLY)? Requir ement to notify interested persons .01 Interested persons must receive notice, in accordance with section 20B of this revenue procedure, that an application for an advance determination will be filed regarding whether a § 403(b) plan meets the requirements of § 403(b). An interested person with respect to a determination letter application of an ongoing § 403(b) plan is any employee participating in the plan or eligible to participate in the plan. An interested person with respect to a determination letter application of a terminating § 403(b) plan is any participant in the plan or any beneficiary eligible to receive or receiving benefits from the plan. Comments by interested persons .02 Interested persons may submit written comments to the Service with respect to whether a § 403(b) plan meets the requirements of § 403(b). Comments submitted by interested persons must be received by EP Determinations by the 45th day after the day on which the application for determination is received by EP Determinations. Such comments must be in writing and signed by the interested persons or by an authorized representative of such persons (as provided in section 6.02(11) of this revenue procedure), and addressed to: • Internal Revenue Service • EP Determinations • Attn: Customer Service Manager • P.O. Box 2508 • Cincinnati, OH 45202 January 3, 2023 218 Bulletin No. 2023–1 Comments must contain the following information: (1) The names of the interested persons making the comments; (2) The name and taxpayer identification number of the applicant for a determination; (3) The name of the plan, the plan identification number, and the name of the plan administrator; (4) Whether the persons submitting the comment are: (a) Employees eligible to participate under the plan; (b) Former employees with an account balance under the plan; (c) Beneficiaries of deceased former employees who are eligible to receive or are currently receiving benefits under the plan; or (d) Employees not eligible to participate under the plan; (5) The specific matters raised by the interested persons on the question of whether the plan meets the requirements of § 403(b), and how such matters relate to the interests of the persons making the comment; and (6) The address of the interested person submitting the comment (or if a comment is submitted jointly by more than one party, the name and address of a designated representative) to which all correspondence, including a notice of the Service’s final determination with respect to the plan meeting the requirements of § 403(b) should be sent. The designated representative may be one of the interested persons submitting the comment or an authorized representative. If two or more interested persons submit a single comment and one person is not designated in the comment as the representative for receipt of correspondence, a notice of determination mailed to any interested person who submitted the comment shall be notice to all the interested persons who submitted the comment. When comments are deemed made Section 19B is not applicable to plan sponsors of governmental plans .03 An application for an advance determination or a comment to EP Determinations shall be deemed made when it is received by EP Determinations. .04 A plan sponsor of a governmental plan within the meaning of § 414(d) is not required to comply with this section 19B. SECTION 20A. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PARTIES (QUALIFIED PLANS ONLY)? .01 Bulletin No. 2023–1 219 January 3, 2023 Notice to interested parties ( 1) Notice that an application for an advance determination regarding the qualification of a plan that is described in § 401, 403(a), 409, or 4975(e)(7) and that is subject to § 410 is to be made must be given to all interested parties in the manner prescribed in § 1.7476-2(c) and in accordance with the requirements of this section. A notice to interested parties is deemed to be provided in a manner that satisfies § 1.7476-2(c) if the notice is delivered using an electronic medium under a system that satisfies the requirements of § 1.401(a)-21. Time when notice must be given .02 Notice must be given not less than 10 days nor more than 24 days prior to the day the application for a determination is submitted. If an applicant fails to provide the notice in a timely manner, the application will be returned to the applicant. If, however, an application is returned to the applicant for failure to adequately satisfy the notification requirements with respect to a particular group or class of interested parties, the applicant need not cause notice to be given to those groups or classes of interested parties with respect to which the notice requirement was already satisfied merely because, as a result of the resubmission of the application, the time limitations for providing the notice in this subsection would not be met. Content of notice .03 The notice referred to in section 20A.01 of this revenue procedure must contain the following information: (1) A brief description identifying the class or classes of interested parties to whom the notice is addressed (e.g., all present employees of the employer, or all present employees eligible to participate); (2) The name of the plan, the plan identification number, and the name of the plan administrator; (3) The name and taxpayer identification number of the applicant for a determination; (4) A statement that an application for a determination as to the qualified status of the plan must be made to EP Determinations at the address provided in section 31 of this revenue procedure, and whether the application relates to an initial determination, determination upon plan termination, or determination upon partial termination; (5) A description of the class of employees eligible to participate under the plan; (6) A statement of whether or not EP Determinations has issued a previous determination as to the qualified status of the plan; (7) A statement that any person to whom the notice is addressed is entitled to submit, or request the DOL to submit, to EP Determinations a comment on the question of whether the plan meets the requirements of § 401 or 403(a); that two or more such persons may join in a single comment or request; and that if such persons, with respect to a qualified plan, request the DOL to submit a comment and the DOL declines to do so with respect to one or more matters raised in the request, the persons may still submit a comment to EP Determinations with respect to the matters on which the DOL declines to comment; (8) The specific dates by which a comment to EP Determinations or, a request to the DOL must be received in order to preserve the right of comment (see section 19A of this revenue procedure); (9) The number of interested parties needed in order for the DOL to comment; and January 3, 2023 220 Bulletin No. 2023–1 (10) Except to the extent that the additional information required to be made available to interested parties by sections 20A.05 through 20A.09 of this revenue procedure is included in the notice, a description of a reasonable procedure whereby such additional informational material will be available to interested parties (see section 20A.04 of this revenue procedure). A sample notice setting forth the above information in a case in which the additional information required by sections 20A.05 through 20A.09 of this revenue procedure will be made available at places accessible to the interested parties is provided in Appendix B1 to this revenue procedure. Procedures for making information available to interested parties .04 The procedure referred to in section 20A.03(10) of this revenue procedure, whereby the additional information required by sections 20A.05 through 20A.09 of this revenue procedure will (to the extent not included in the notice) be made available to interested parties, may consist of making such material available for inspection and copying by interested parties at a place or places reasonably accessible to such parties, or supplying such material by using a method of delivery or a combination thereof that is reasonably calculated to ensure that all interested parties will have access to the materials, provided such procedure is immediately available to all interested parties, is designed to supply them with such additional informational material in time for them to pursue their rights within the time period prescribed, and is available until the earlier of: 1) the filing of a pleading commencing a declaratory judgment action under § 7476 with respect to the qualification of the plan; or 2) the 92nd day after the day the notice of final determination is mailed to the applicant. Reasonable charges to interested parties for copying and/or mailing such additional informational material are permissible. Information to be made available to interested parties .05 Unless provided in the notice, or unless section 20A.06 of this revenue procedure applies, there shall be made available to interested parties under a procedure described in section 20A.04 of this revenue procedure: (i) An updated copy of the plan and the related trust agreement (if any); (ii) The application for determination; and (iii) Any additional documents relating to the application which are submitted by or for the applicant to EP Determinations, or furnished by EP Determinations to the applicant. Special rules if there are fewer than 26 participants .06 If there would be fewer than 26 participants in the plan, as described in the application (including, as participants, former employees with vested benefits under the plan, beneficiaries of deceased former employees currently receiving benefits under the plan, and employees who would be eligible to participate upon making mandatory employee contributions, if any), then in lieu of making the materials described in section 20A.05 of this revenue procedure available to interested parties who are not participants (as described above), there may be made available to such interested parties a document containing the following information: (1) A description of the plan’s requirements respecting eligibility for participation and benefits and the plan’s benefit formula; (2) A description of the provisions providing for nonforfeitable benefits; (3) A description of the circumstances which may result in ineligibility, or denial or loss of benefits; Bulletin No. 2023–1 221 January 3, 2023 (4) A description of the source of financing of the plan and the identity of any organization through which benefits are provided; and (5) A description of any optional forms of benefits described in § 411(d)(6) that have been reduced or eliminated by plan amendment. However, once an interested party or designated representative receives a notice of final determination, the applicant must, upon request, make available to such interested party (whether or not the plan has fewer than 26 participants) an updated copy of the plan and related trust agreement (if any) and the application for determination. Information described in § 6104(a)(1)(D) should not be included .07 Information of the type described in § 6104(a)(1)(D) should not be included in the application, plan, or related trust agreement submitted to EP Determinations. Accordingly, such information should not be included in any of the materials required by section 20A.05 or 20A.06 of this revenue procedure to be made available to interested parties. A vailability of additional information to interested parties .08 Unless provided in the notice, there shall be made available to interested parties under a procedure described in section 20A.04 of this revenue procedure any additional documents relating to the application which are submitted by or for the applicant to EP Determinations, or furnished by EP Determinations to the applicant; provided, however, if there would be fewer than 26 participants in the plan as described in the application (including, as participants, former employees with vested benefits under the plan, beneficiaries of deceased former employees currently receiving benefits under the plan, and employees who would be eligible to participate upon making mandatory employee contributions, if any), such additional documents need not be made available to interested parties who are not participants (as described above) until they, or their designated representative, receive a notice of final determination. The applicant may also withhold from such inspection and copying any information described in § 6104(a)(1)(C) and (D) which may be contained in such additional documents. .09 Unless provided in the notice, there shall be made available to all interested parties under a procedure described in section 20A.04 of this revenue procedure the material described in sections 19A.02 through 19A.07 of this revenue procedure, as applicable. A vailability of notice to interested parties SECTION 20B. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PERSONS (§ 403(b) PLANS ONLY)? Notice to inter ested persons . 01 Notice that an application for an advance determination regarding whether a § 403(b) plan satisfies the requirements of § 403(b) must be given to all interested persons in accordance with the requirements of this section. The notice described in this section 20B.01 shall be deemed given when it is posted or sent to the person by any method reasonably calculated to ensure that each interested person is notified of the application for a determination. If the notice to interested persons is delivered using an electronic medium under an electronic system that satisfies the applicable notice requirements of § 1.401(a)-21, the notice is deemed to be provided in a manner that satisfies the requirements of this section 20B.01. Time when notice must be given .02 Notice must be given not less than 10 days nor more than 24 days prior to the day the application for a determination is submitted. If an applicant fails to provide the notice in a timely January 3, 2023 222 Bulletin No. 2023–1 manner, the application will be returned to the applicant. If, however, an application is returned to the applicant for failure to adequately satisfy the notification requirements with respect to a particular group or class of interested persons, the applicant need not cause notice to be given to those groups or classes of interested persons with respect to which the notice requirement was already satisfied merely because, as a result of the resubmission of the application, the time limitations for providing the notice in this subsection would not be met. Content of notice .03 The notice referred to in section 20B.01 of this revenue procedure must contain the following information (a sample notice is provided in Appendix B2 to this revenue procedure): (1) A brief description identifying the class or classes of interested persons to whom the notice is addressed; (2) The name of the plan, the plan identification number, and the name of the plan administrator; (3) The name and taxpayer identification number of the applicant for a determination; (4) A statement that an application for a determination as to whether the plan meets the requirements of § 403(b) has been made to EP Determinations at the address provided in section 31 of this revenue procedure, and whether the application relates to an initial determination or determination upon plan termination; (5) A description of the class of employees eligible to participate under the plan; (6) A statement of whether or not EP Determinations has issued a previous determination as to the whether the plan has satisfied the requirements of § 403(b); (7) A statement that any person to whom the notice is addressed is entitled to submit, to EP Determinations, a comment on the question of whether the plan meets the requirements of § 403(b); and that two or more such persons may join in a single comment or request; (8) The specific dates by which a comment to EP Determinations must be received in order to preserve the right of comment (see section 19B.02 of this revenue procedure); and (9) A description of where the additional information required by section 20B.04 of this revenue procedure will be made available at places accessible to the interested persons. Information to be made available to interested persons .04 Interested persons may request the following information from the plan sponsor: (1) An updated copy of the plan and custodial agreement or annuity contract; and (2) The application for determination. Reasonable charges to interested persons for copying and/or mailing such informational materials are permissible. Information described in § 6110(c) should not be included .05 Information of the type described in § 6110(c) should not be included in the application, plan, or custodial agreement or annuity contract submitted to EP Determinations. Accordingly, Bulletin No. 2023–1 223 January 3, 2023 Section 20B is not applicable to plan sponsors of governmental plans such information should not be included in any of the materials required by section 20B.03 or 20B.04 of this revenue procedure to be made available to interested persons. . 06 A plan sponsor of a governmental plan within the meaning of § 414(d) is not required to comply with this section 20B. PART IIC. PROCESSING DETERMINATION LETTER REQUESTS SECTION 21. HOW DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS HANDLE DETERMINATION LETTER REQUESTS? Oral advice .01 Oral advice (1) EP Determinations does not issue determination letters on oral requests. However, personnel in EP Determinations ordinarily will discuss with taxpayers or their representatives inquiries regarding substantive tax issues, whether EP Determinations will issue a determination letter on particular issues, and questions relating to procedural matters about submitting determination letter requests. Any discussion of substantive issues will be at the discretion of EP Determinations on a time-available basis, will not be binding on the Service, and cannot be relied upon as a basis of obtaining retroactive relief under the provisions of § 7805(b). A taxpayer may seek oral technical assistance from a taxpayer Service representative when preparing a return or report, under established procedures. Oral advice is advisory only, and the Service is not bound to recognize it in the examination of the taxpayer’s return. (2) The advice or assistance furnished, whether requested by personal appearance, telephone, or correspondence will be limited to general procedures, or will direct the inquirer to source material, such as pertinent Code provisions, regulations, revenue procedures, and revenue rulings that may aid the inquirer in resolving the question or problem. Conferences .02 EP Determinations may grant a pre-submission conference upon written request from a taxpayer or the taxpayer’s representative, provided the request shows that a substantive plan, or amendment or other relevant documents have been developed for submission to the Service, but that special problems or issues are involved, and EP Determinations concludes that a conference would be warranted in the interest of facilitating review and determination when the application is formally submitted. Statements made by EP Determinations at a pre-submission conference will not be binding on the Service, and cannot be relied upon as a basis of obtaining retroactive relief under the provisions of § 7805(b). See section 10.16 of this revenue procedure regarding the right to a status conference on applications pending for at least 270 days. Determination letter based solely on administrative record (qualified plans only) .03 Administrative record (1) In the case of a request for a determination letter, the determination of EP Determinations or the Independent Office of Appeals on the qualification or non-qualification of the retirement plan shall be based solely upon the facts contained in the administrative record. The administrative record shall consist of the following: January 3, 2023 224 Bulletin No. 2023–1 (a) The request for determination, the retirement plan and any related trust instruments, and any written modifications or amendments made by the applicant during the proceedings within the Service; (b) All other documents submitted to the Service by, or on behalf of, the applicant with respect to the request for determination; (c) All written correspondence between the Service and the applicant with respect to the request for determination, and any other documents issued to the applicant from the Service; (d) All written comments submitted to the Service pursuant to sections 19A.01(2), (3), and (4) this revenue procedure, and all correspondence relating to comments submitted between the Service and persons (including the PBGC and the DOL) submitting comments pursuant to sections 19A.01(2), (3), and (4) of this revenue procedure; and (e) In any case in which the Service makes an investigation regarding the facts as represented or alleged by the applicant in the request for determination or in comments submitted pursuant to this revenue procedure, a copy of the official report of such investigation. (2) The administrative record shall be closed upon the earlier of the following events: (a) The date of mailing of a notice of final determination by the Service with respect to the application for determination; or (b) The filing of a petition with the United States Tax Court seeking a declaratory judgment with respect to the qualified status of a retirement plan under § 401(a) or § 403(a). (3) Any oral representation or modification of the facts as represented or alleged in the application for determination or in a comment filed by an interested party, which is not reduced to writing, shall not become a part of the administrative record and shall not be taken into account in the determination of the qualified status of the retirement plan by EP Determinations or the Independent Office of Appeals. Notice of final determination .04 In the case of final determination, the notice of final determination shall be one of the following: (1) The letter issued by EP Determinations or the Independent Office of Appeals which states that the applicant’s plan satisfies the qualification requirements of the Code, or, in the case of a § 403(b) plan, meets the requirements of § 403(b). The favorable determination letter will be sent by certified mail in situations in which an interested party, the DOL, or the PBGC has commented on the application for determination. (2) The letter issued, by certified mail, by EP Determinations or the Independent Office of Appeals subsequent to a letter of proposed determination, stating that the applicant’s plan fails to satisfy the qualification requirements of the Code or, in the case of a § 403(b) plan, fails to satisfy the requirements of § 403(b). Issuance of the notice of final determination (qualified plans only) .05 EP Determinations or the Independent Office of Appeals will send the notice of final determination to the applicant, to the interested parties who have previously submitted comments on the application to the Service (or to the persons designated by them to receive such notice), to Bulletin No. 2023–1 225 January 3, 2023 the DOL if the DOL has submitted a comment, and to the PBGC, if the PBGC has submitted a comment. SECTION 22. WHAT ARE THE STEPS FOR EXHAUSTING ADMINISTRATIVE REMEDIES (QUALIFIED PLANS ONLY)? In general . 01 For purposes of § 7476(b)(3), a petitioner is deemed to have exhausted the administrative remedies available within the Service upon the completion of the steps described in section 22.02, 22.03, 22.04, or 22.05 of this revenue procedure subject, however, to sections 20A.06 and 20A.07 of this revenue procedure. If applicants, interested parties, or the PBGC do not complete the applicable steps described below, they will not have exhausted their respective available administrative remedies as required by § 7476(b)(3) and will, thus, be precluded from seeking declaratory judgment under § 7476 except to the extent that section 22.05 of this revenue procedure applies. Steps for exhausting administrative remedies .02 In the case of an applicant, with respect to any matter relating to the qualification of a plan, the steps referred to in section 22.01 of this revenue procedure are: (1) Filing a completed application with EP Determinations pursuant to this revenue procedure; (2) Complying with the requirements pertaining to notice to interested parties as set forth in this revenue procedure and § 1.7476–2; and, (3) Appealing to the Independent Office of Appeals pursuant to § 601.201(o)(6) of the Statement of Procedural Rules, in the event a notice of proposed adverse determination is issued by EP Determinations. Applicant’s request for § 7805(b) relief .03 In order for a petitioner to be deemed to have exhausted administrative remedies within the Service with respect to § 7805(b), an applicant must submit a request for relief under § 7805(b) to the agent or specialist assigned to the case in accordance with the procedures in section 23.08 of this revenue procedure. Interested parties .04 In the case of an interested party or the PBGC, the steps referred to in section 22.01 of this revenue procedure are, with respect to any matter relating to the qualification of the plan, submitting to EP Determinations a comment raising such matter in accordance with section 19A.01(2) of this revenue procedure, or requesting the DOL to submit to EP Determinations a comment with respect to such matter in accordance with section 19A.01(3) of this revenue procedure and, if the DOL declines to comment, submitting the comment in accordance with section 19A.01(4) of this revenue procedure, so that it may be considered by EP Determinations through the administrative process. Deemed exhaustion of administrative remedies .05 An applicant, an interested party, or the PBGC will not be deemed to have exhausted administrative remedies prior to the earlier of: (1) The completion of those steps applicable to each as set forth in section 22.01, 22.02, 22.03, or 22.04 of this revenue procedure, which constitute their administrative remedies; or January 3, 2023 226 Bulletin No. 2023–1 (2) The expiration of the 270–day period described in § 7476(b)(3), which period shall be extended in a case in which there has not been a completion of all the steps referred to in section 22.02 of this revenue procedure, and the Service has proceeded with due diligence in processing the application for determination. Service must have reasonable time to act on appeal Service must have reasonable time to act on request for § 7805(b) relief .06 The step described in section 22.02(3) of this revenue procedure will not be considered completed until the Service has had a reasonable time to act upon the appeal. .07 If the applicant has requested relief under § 7805(b), the applicant’s administrative remedies with respect to the § 7805(b) request will not be considered exhausted unless the procedures for making a § 7805(b) request as set forth in section 23.08 of this revenue procedure have been followed and the Service has had a reasonable time to act upon the request. SECTION 23. WHAT EFFECT WILL A DETERMINATION LETTER HAVE? May be relied on subject to limitations Scope of reliance on determination letter .01 A taxpayer ordinarily may rely on a determination letter received from EP Determinations subject to the conditions and limitations described in this section. .02 (1) A determination letter issued pursuant to this revenue procedure contains only the opinion of EP Determinations as to the qualification of the particular plan involving the provisions of §§ 401 and 403(a) and the status of a related trust, if any, under § 501(a) or a plan’s meeting the requirements of § 403(b). Such a determination letter is based on the facts and information presented to EP Determinations in connection with the application for the determination letter and may not be relied upon after a change in material fact or the effective date of a change in law, except as provided below. EP Determinations may determine, based on the application form, the extent of review of the plan document. Failure to disclose a material fact or misrepresentation of a material fact adversely affects the reliance that would otherwise be obtained through the issuance by EP Determinations of a favorable determination letter. Similarly, failure to accurately provide any of the information called for on any form required by this revenue procedure may result in no reliance. Applicants are advised to retain copies of all supporting data submitted with their applications. Failure to do so may limit the scope of reliance. (2) While a favorable determination letter may serve as a basis for determining deductions for employer contributions thereunder, it is not to be taken as an indication that contributions are necessarily deductible as made. This latter determination can be made only upon an examination of the employer’s tax return in accordance with the limitations, and subject to the conditions, of § 404. Effect of subsequent publication of revenue ruling, etc. .03 The prior qualification of a plan as adopted by an employer will not be considered to be adversely affected by the publication of a revenue ruling, a revenue procedure, or an administrative pronouncement within the meaning of § 1.6661–3(b)(2) in cases in which: (1) The plan was the subject of a favorable determination letter and the request for that letter contained no misstatement or omission of material facts; (2) The facts subsequently developed are not materially different from the facts on which the determination letter was based; Bulletin No. 2023–1 227 January 3, 2023 (3) There has been no change in the applicable law; and (4) The employer that established the plan acted in good faith in reliance on the determination letter. However, all such plans must be amended to comply with the published guidance for subsequent years, in accordance with the rules set forth in Rev. Proc. 2022-40. Effect of subsequent amendment by employer .04 In general, a plan sponsor that maintains a plan for which a favorable determination letter has been issued and that is otherwise entitled to rely on the determination letter may not continue to rely on the determination letter with respect to a plan provision that is subsequently amended or that is subsequently affected by a change in law. However, a plan sponsor may continue to rely on a determination letter with respect to plan provisions that are not amended (or affected by an amendment) and plan provisions that are not affected by a change in qualification requirements or § 403(b) requirements. In addition, a plan sponsor that adopts a sample or model amendment issued by the Service on a word-for-word basis (or adopts an amendment that is substantially similar to a sample or model amendment in all material respects) may continue to rely on a previously issued determination letter. An adopting employer of a pre-approved plan amending any provision of a pre-approved plan, including its adoption agreement (other than certain amendments that will not cause a plan to fail to be identical to a pre-approved plan, as described in section 8.03 of Rev. Proc. 2017-41 and section 9.05 of Rev. Proc. 2021-37), will lose reliance on the opinion letter. Revocation or modification of a determination letter .05 If the Director, Employee Plans reaches a conclusion contrary to that expressed in a determination letter, he or she has the authority to revoke or modify a determination letter in any manner. Determination letter revoked or modified based on material change in facts applied retroactively .06 The revocation or modification of a determination letter will be applied retroactively to the taxpayer for whom the determination letter was issued or to a taxpayer whose tax liability was directly involved in the determination letter if— (1) there was a misstatement or omission of controlling facts; (2) the facts at the time of the transaction are materially different from the controlling facts on which the determination letter was based; or (3) the transaction involves a continuing action or series of actions and the controlling facts change during the course of the transaction. Not otherwise generally revoked or modified retroactively .07 If the revocation or modification of a determination letter occurs, for reasons other than a change in facts as described in section 23.06 of this revenue procedure, the revocation or modification will generally not be applied retroactively to the taxpayer for whom the determination letter was issued or to a taxpayer whose tax liability was directly involved in the determination letter provided that— (1) there was no change in the applicable law; (2) the determination letter was originally issued for a proposed transaction; and January 3, 2023 228 Bulletin No. 2023–1 (3) the taxpayer directly involved in the determination letter acted in good faith in relying on the determination letter, and revoking or modifying the determination letter retroactively would be to the taxpayer’s detriment. Taxpayer may request that retroactive effect of revocation or modification be limited under § 7805(b) .08 A taxpayer may seek relief from retroactive revocation or modification of a determination letter under § 7805(b). A request for relief under § 7805(b) must be in writing and must be submitted to the agent or specialist assigned to the case. The request for relief under § 7805(b) must be submitted before issuance of the final adverse determination letter. (1) Form of request for relief. A taxpayer’s request to limit the retroactive effect of the revocation or modification of the determination letter must-- (a) state that it is being made under § 7805(b); (b) state the relief sought; (c) explain the reasons and arguments in support of the relief sought; and (d) include any documents bearing on the request. (2) Notice of denial of request for relief. If the request for relief under § 7805(b) is denied, the applicant will be notified in writing of the denial. (3) Taxpayer must exhaust its administrative remedies. If a taxpayer seeks declaratory judgment under § 7476 with respect to a qualified plan in response to a retroactive revocation or modification, to preserve judicial review of a claim for relief under § 7805(b), the taxpayer must follow the steps in this revenue procedure in order to have exhausted its administrative remedies with respect to its request under § 7805(b). If the taxpayer does not complete the applicable steps, the taxpayer will not have exhausted its administrative remedies as required by § 7476(b)(3) with respect to its request for § 7805(b) relief, and will thus be precluded from obtaining § 7805(b) relief in any declaratory judgment it seeks under § 7476. If a taxpayer has requested § 7805(b) relief, the taxpayer’s administrative remedies with respect to its § 7805(b) request will not be considered exhausted until the Service has had a reasonable amount of time to act upon the request. PART III. PROCEDURES FOR LETTER RULING REQUESTS PART IIIA. REQUESTING LETTER RULINGS SECTION 24. UNDER WHAT CIRCUMSTANCES DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS ISSUE LETTER RULINGS? Bulletin No. 2023–1 229 January 3, 2023 Scope limited to issues specified . 01 Employee Plans Rulings and Agreements issues letter rulings on proposed transactions and on completed transactions either before or after the taxpayer’s return covering the issue presented in a ruling request is filed. Employee Plans Rulings and Agreements only issues letter rulings involving: (1) Section 72 (involving computation of the exclusion ratio only); (2) Changes in funding methods (see Rev. Proc. 2017-57, 2017-44 IRB 474) and actuarial assumptions under § 412, 430, 431 or 433; (3) Waiver of the liquidity shortfall (as that term is defined in § 430(j)(4)) excise tax under § 4971(f)(4); (4) Waiver of the 60-day rollover requirement under §§ 402(c)(3) and 408(d)(3) (see Rev. Proc. 2003-16, 2003-4 IRB 359, as modified by Rev. Proc. 2016-47, 2016-37 IRB 37, and by Rev. Proc. 2020-46, 2020-45 IRB 995); (5) A change in the plan year of an employee retirement plan and the trust year of a tax-exempt employees’ trust (see Rev. Proc. 87-27, 1987-1 CB 769); (6) The tax consequences of prohibited transactions under §§ 503 and 4975; (7) Whether individual retirement accounts established by employers or associations of employees meet the requirements of § 408(c) (see Rev. Proc. 87-50; Rev. Proc. 92-38; Rev. Proc. 98-59; Rev. Proc. 2002-10, and Rev. Proc. 2010-48, as modified by Appendix A of this revenue procedure); (8) Requests for relief under § 301.9100 to recharacterize contributions to a Roth IRA (see section 24.03 of this revenue procedure with respect to elections under § 301.9100-1); (9) Requests by the plan sponsor of a multiemployer pension plan for approval of an extension of an amortization period in accordance with § 431(d), including requests in connection with an extension of an amortization period involving whether a plan amendment is reasonable and provides for only de minimis increases in plan liabilities in accordance with §§ 401(a)(33) and 412(c)(7)(B)(i) (see Rev. Proc. 2010-52, 2010-52 IRB 927); (10) Requests for the return to the employer of certain nondeductible contributions (see Rev. Proc. 90–49, 1990–2 CB 620, as modified by Appendix A of this revenue procedure); or (11) Requests for approval of the use of a substitute mortality table in accordance with § 430(h) (3)(C) (see Rev. Proc. 2017-55, 2017-43 IRB 373). Letter rulings involving other issues relating to qualified plans may be issued by the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). Procedures for requesting letter rulings under the jurisdiction of the Office of Associate Chief Counsel are set forth in Rev. Proc. 2023-1, this Bulletin. January 3, 2023 230 Bulletin No. 2023–1 Generally not in employee plans qualification matters . 02 The Employee Plans Rulings and Agreements office ordinarily will not issue letter rulings on matters involving a plan’s status under §§ 401 through 420 and § 4975(e)(7). These matters are generally handled by EP Determinations pursuant to this revenue procedure and Rev. Proc. 2022-40. Occasionally these matters may be handled by the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). See section 4.02(12) of Rev. Proc. 2023-3, this Bulletin. Request to Employee Plans Rulings and Agreements for extension of time for making an election or for other relief under § 301.9100-1 .03 Employee Plans Rulings and Agreements will consider a request for an extension of time for making an election under § 301.9100-3 to recharacterize annual contributions made to a Roth IRA. Employee Plans Rulings and Agreements will also consider recharacterization requests under § 301.9100-3 that relate to a conversion or rollover contribution to a Roth IRA but only if the rollover or conversion was made prior to January 1, 2018. With respect to recharacterization of a Roth IRA, Employee Plans Rulings and Agreements will consider a request for an extension of time for making an election or other application for relief under § 301.9100-1 even if submitted after the return covering the issue presented in the § 301.9100-1 request has been filed and even if submitted after an examination of the return has begun or after the issues in the return are being considered by the Independent Office of Appeals or a federal court. In such a case, Employee Plans Rulings and Agreements will notify the Director, Small Business/Self-Employed (SB/SE) Examinations. Section 301.9100-1 requests, even those submitted after the examination of the taxpayer’s return has begun, are letter ruling requests that should be submitted pursuant to this revenue procedure, including payment of the applicable user fee referenced in section 6.02(15) of this revenue procedure. In addition, the taxpayer must include the information required by § 301.9100-3(e). However, an election made pursuant to § 301.9100-2 is not a letter ruling and does not require payment of any user fee. See § 301.9100-2(d). Such an election pertains to an automatic extension of time under § 301.9100-1. Issuance of a letter ruling before the issuance of a regulation or other published guidance .04 Unless the issue is covered by section 25 of this revenue procedure, a letter ruling may be issued before the issuance of a temporary or final regulation or other published guidance that interprets the provisions of any act under the following conditions: (1) Answer is clear or is reasonably certain. If the letter ruling request presents an issue for which the answer seems clear by applying the statute to the facts or for which the answer seems reasonably certain but not entirely free from doubt, a letter ruling will be issued; or (2) Answer is not reasonably certain. If the letter ruling request presents an issue for which the answer does not seem reasonably certain, Employee Plans Rulings and Agreements may issue the letter ruling, using its best efforts to arrive at a determination, if it is in the best interest of tax administration. Under these circumstances, coordination with the Office of Chief Counsel generally will be required. However, a letter ruling will not be issued if the letter ruling request presents an issue that cannot be readily resolved before a regulation or any other published guidance is issued. Issues in prior return .05 Employee Plans Rulings and Agreements ordinarily does not issue letter rulings if, at the time the ruling is requested, the identical issue is involved in the taxpayer’s return for an earlier period, and that issue: Bulletin No. 2023–1 231 January 3, 2023 (1) is being examined by the Director, Employee Plans Examinations; (2) is being considered by the Independent Office of Appeals; (3) is pending in litigation in a case involving the taxpayer or related taxpayer; or (4) has been examined by the Director, Employee Plans Examinations, or considered by the Independent Office of Appeals, and the statutory period of limitation has not expired for either assessment or filing a claim for a refund or a closing agreement covering the issue of liability has not been entered into by the Director, Employee Plans Rulings and Agreements, or by the Independent Office of Appeals. If a return dealing with an issue for a particular year is filed while a request for a ruling on that issue is pending, Employee Plans Rulings and Agreements will issue the ruling unless it is notified by the taxpayer or otherwise learns that an examination of that issue or the identical issue on an earlier year’s return has been started by the Director, Employee Plans Examinations. See section 6.05 of this revenue procedure. However, even if an examination has begun, Employee Plans Rulings and Agreements ordinarily will issue the letter ruling if the Director, Employee Plans Examinations, agrees, by memorandum, to permit the ruling to be issued. Generally not to business associations or groups .06 Employee Plans Rulings and Agreements does not issue letter rulings to business, trade, or industrial associations or to similar groups concerning the application of the tax laws to members of the group. Employee Plans Rulings and Agreements, however, may issue letter rulings to groups or associations on their own tax status or liability if the request meets the requirements of this revenue procedure. Generally not to foreign governments . 07 Employee Plans Rulings and Agreements does not issue letter rulings to foreign governments or their political subdivisions about the U.S. tax effects of their laws. However, Employee Plans Rulings and Agreements may issue letter rulings to foreign governments or their political subdivisions on their own tax status or liability under U.S. law if the request meets the requirements of this revenue procedure. Generally not on federal tax consequences of proposed legislation .08 Employee Plans Rulings and Agreements does not issue letter rulings on a matter involving the federal tax consequences of any proposed federal, state, local, municipal, or foreign legislation. SECTION 25. UNDER WHAT CIRCUMSTANCES DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS HAVE DISCRETION TO ISSUE LETTER RULINGS? Ordinarily not in certain areas because of factual nature of the problem .01 Employee Plans Rulings and Agreements ordinarily will not issue a letter ruling in certain areas because of the factual nature of the problem involved or because of other reasons. Employee Plans Rulings and Agreements may decline to issue a letter ruling if appropriate in the interest of sound tax administration, including due to resource constraints, or on other grounds whenever warranted by the facts or circumstances of a particular case. January 3, 2023 232 Bulletin No. 2023–1 No “comfort” letter rulings .02 No letter ruling will be issued with respect to an issue that is clearly and adequately addressed by statute, regulations, decision of a court of appropriate jurisdiction, revenue ruling, revenue procedure, notice, or other authority published in the Internal Revenue Bulletin. Not on alternative plans or hypothetical situations Ordinarily not on part of an integrated transaction .03 A letter ruling will not be issued on alternative plans of proposed transactions or on hypothetical situations. .04 Employee Plans Rulings and Agreements ordinarily will not issue a letter ruling on only part of an integrated transaction. If, however, a part of a transaction falls under a no-rule area, a letter ruling on other parts of the transaction may be issued. In this case, before preparing the letter ruling request, the taxpayer should call the office having jurisdiction for the matters on which the taxpayer is seeking a letter ruling to discuss whether Employee Plans Rulings and Agreements will issue a letter ruling on part of the transaction. Not on partial terminations of employee plans . 05 Employee Plans Rulings and Agreements will not issue a letter ruling on the partial termination of an employee plan. However, determination letters involving the partial termination of an employee plan may be issued. See section 9.09 of this revenue procedure. Law requires a letter ruling .06 Employee Plans Rulings and Agreements will issue a letter ruling on prospective or future transactions if the law or regulations require a determination of the effect of a proposed transaction for tax purposes. Issues under consideration by the PBGC or the DOL .07 A letter ruling relating to an issue that is being considered by the PBGC or the DOL, that involves the same taxpayer, shall be issued at the discretion of Employee Plans Rulings and Agreements. Domicile in a foreign jurisdiction .08 (1) Employee Plans Rulings and Agreements is ordinarily unwilling to rule in situations in which a taxpayer or a related party is domiciled or organized in a foreign jurisdiction with which the United States does not have an effective mechanism for obtaining tax information with respect to civil tax examinations and criminal investigations, which would preclude Employee Plans Rulings and Agreements from obtaining information located in such jurisdiction that is relevant to the analysis or examination of the tax issues involved in the ruling request. (2) The provisions of section 25.08(1) of this revenue procedure will not apply if the taxpayer or affected related party (a) consents to the disclosure of all relevant information requested by Employee Plans Rulings and Agreements in processing the ruling request or in the course of an examination to verify the accuracy of the representations made and to otherwise analyze or examine the tax issues involved in the ruling request, and (b) waives all claims to protection of bank and commercial secrecy laws in the foreign jurisdiction with respect to the information requested by the Service. In the event the taxpayer’s or related party’s consent to disclose relevant information or to waive protection of bank or commercial secrecy is determined by the Service to be ineffective or of no force and effect, then the Service may retroactively rescind any ruling rendered in reliance on such consent. Bulletin No. 2023–1 233 January 3, 2023 SECTION 26. WHAT IS THE PROCEDURE FOR REQUESTING A LETTER RULING FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? General procedures for requesting a letter ruling Specific additional procedures apply to certain letter ruling requests .01 The procedures in section 6 of this revenue procedure are generally applicable to requests for letter rulings. . 02 The following specific revenue procedures and notices supplement the general instructions for requests described in section 24 of this revenue procedure and apply to requests for a letter ruling regarding the Code sections and matters listed in this section. These revenue procedures and notices may be revised or supplemented. (1) For requests by the plan sponsor of a multiemployer pension plan for approval of an extension of an amortization period in accordance with § 431(d), see Rev. Proc. 2010-52, 2010-52 IRB 927. (2) For requests by administrators or sponsors of a defined benefit plan to obtain approval for a change in funding method, see Rev. Proc. 2017-57. (3) For requests for the return to the employer of certain nondeductible contributions, see Rev. Proc. 90-49, 1990-2 CB 620. (4) For requests for approval of the use of a substitute mortality table in accordance with § 430(h)(3)(C), see Rev. Proc. 2017-55. PART IIIB. PROCESSING LETTER RULING REQUESTS SECTION 27. HOW DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS HANDLE LETTER RULING REQUESTS? In general . 01 Employee Plans Rulings and Agreements will issue letter rulings on the matters and under the circumstances described in section 24 of this revenue procedure and in the manner described in this section and section 29 of this revenue procedure. .02 Employee Plans Rulings and Agreements will not be bound by the informal opinion expressed by any authorized Service representative under this procedure, and such an opinion cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). Is not bound by informal opinion expr essed Will return any letter ruling request mistakenly sent to wrong address Tells taxpayer if request lacks essential information during initial contact .03 A request for a letter ruling sent to EP Determinations will be returned to the sender so that the taxpayer can submit it to the appropriate office. .04 If a request for a letter ruling does not comply with all the provisions of this revenue procedure, the request will be acknowledged and the Employee Plans Rulings and Agreements January 3, 2023 234 Bulletin No. 2023–1 Information must be submitted within 30 calendar days representative will tell the taxpayer during the initial contact which requirements have not been met. .05 If the request lacks essential information, which may include additional information needed to satisfy the procedural requirements of this revenue procedure, as well as substantive changes to transactions or documents needed from the taxpayer, the Employee Plans Rulings and Agreements representative will inform the taxpayer during the initial contact that the request will be closed if Employee Plans Rulings and Agreements does not receive the information within 30 calendar days and extension of time is not granted. See section 27.10 of this revenue procedure for information on extension of time and instructions on submissions of additional information. Requires prompt submission of additional information requested after initial contact .06 Material facts furnished to Employee Plans Rulings and Agreements by telephone or fax, or orally at a conference, must be promptly confirmed by letter to Employee Plans Rulings and Agreements. This confirmation and any additional information requested by Employee Plans Rulings and Agreements that is not part of the information requested during the initial contact must be furnished within 21 calendar days to be considered part of the request. Additional information submitted to Employee Plans Rulings and Agreements must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the relevant facts relating to the request for the information, and such facts are true, correct, and complete.” This declaration must be signed in accordance with the requirements in section 6.02(14)(b) of this revenue procedure. A taxpayer who submits additional factual information on several occasions may provide one declaration subsequent to all submissions that refers to all submissions. Encourages use of fax . 07 To facilitate prompt action on letter ruling requests, taxpayers are encouraged to submit additional information by fax as soon as the information is available. The Employee Plans Rulings and Agreements representative who requests additional information can provide a telephone number to which the information can be faxed. A copy of this information and signed penalties of perjury statement, however, must be mailed or delivered to Employee Plans Rulings and Agreements. Address to send additional information .08 Additional information should be sent to the same address as the original letter ruling request. See section 31 of this revenue procedure. However, the additional information should include the name, office symbols, and room number of the Service representative who requested the information and the taxpayer’s name and the case control number (which the Employee Plans Rulings and Agreements representative can provide). Number of copies of additional information to be submitted .09 Generally, a taxpayer needs to submit only one copy of the additional information. However, in appropriate cases, Employee Plans Rulings and Agreements may request additional copies of the information. Extension of 30-day or 21- day period may be granted if justified .10 An extension of the 30-day period under section 27.05 of this revenue procedure or the 21-day period under section 27.06 of this revenue procedure will be granted only if justified in writing by the taxpayer and approved by the manager of the group to which the case is assigned. A request for extension should be submitted before the end of the 30-day or 21-day period. If unusual circumstances close to the end of the 30-day or 21-day period make a written request impractical, the taxpayer should notify Employee Plans Rulings and Agreements within the 30-day or 21-day period that there is a problem and that the written request for extension will be coming soon. The taxpayer will be told promptly of the approval or denial of the requested extension, which will be confirmed later in writing. If the extension request is denied, there is no right of appeal. Bulletin No. 2023–1 235 January 3, 2023 Case closed if taxpayer does not submit additional information . 11 If the taxpayer does not follow the instructions for submitting additional information or requesting an extension within the time provided, a letter ruling will be issued on the basis of the information on hand, or, if appropriate, no letter ruling will be issued. If Employee Plans Rulings and Agreements determines not to issue a letter ruling because essential information is lacking, the case will be closed and the taxpayer notified in writing. If Employee Plans Rulings and Agreements receives the information after the letter ruling request is closed, the request may be reopened and treated as a new request. However, the taxpayer may be required to pay another user fee before the case can be reopened. Near the completion of the ruling process, advises taxpayer of conclusions and, if Employee Plans Rulings and Agreements will rule adversely, offers the taxpayer the opportunity to withdraw the letter ruling request .12 Generally, after the conference of right is held and before the letter ruling is issued, the Employee Plans Rulings and Agreements representative will inform the taxpayer or the taxpayer’s authorized representative of Employee Plans Rulings and Agreements’ final conclusions on the issues for which the letter ruling is sought. If Employee Plans Rulings and Agreements is going to rule adversely, the taxpayer will be offered the opportunity to withdraw the letter ruling request. If the taxpayer or the taxpayer’s representative does not promptly notify the Employee Plans Rulings and Agreements representative of a decision to withdraw the ruling request, the adverse letter will be issued. The user fee will not be refunded for a letter ruling request that is withdrawn. See section 30.10 of this revenue procedure. May r equest draft of proposed letter ruling near the completion of the ruling process .13 To accelerate issuance of letter rulings, in appropriate cases near the completion of the ruling process, the Employee Plans Rulings and Agreements representative may request that the taxpayer or the taxpayer’s representative submit a proposed draft of the letter ruling on the basis of discussions of the issues. The taxpayer, however, is not required to prepare a draft letter ruling in order to receive a letter ruling. The format of the submission should be discussed with the Employee Plans Rulings and Agreements representative who requests the draft letter ruling. The representative usually can provide a sample format of a letter ruling and will discuss the facts, analysis, and letter ruling language to be included. The draft will become part of the permanent files of Employee Plans Rulings and Agreements. The proposed letter ruling should be sent to the same address as any additional information and contain in the transmittal the information that should be included with any additional information (for example, a penalties of perjury statement is required). See section 27.06 of this revenue procedure. SECTION 28. HOW DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS SCHEDULE CONFERENCES WITH TAXPAYERS? Schedules a conference if requested by taxpayer . 01 A taxpayer may request a conference regarding a letter ruling request. Normally, a conference is scheduled only if Employee Plans Rulings and Agreements considers it to be helpful in deciding the case or if an adverse decision is indicated. If conferences are being arranged for more than one request for a letter ruling involving the same taxpayer, they will be scheduled so as to cause the least inconvenience to the taxpayer. A taxpayer who wants to have a conference on the issue or issues involved should indicate this in writing when, or soon after, filing the request. If a conference has been requested, the taxpayer will be notified by telephone, if possible, of the time and place of the conference, which must then be held within 21 calendar days after this contact. Instructions for requesting an extension of the 21-day period and notifying the taxpayer January 3, 2023 236 Bulletin No. 2023–1 Permits taxpayer one conference of right or the taxpayer’s representative of Employee Plans Rulings and Agreements’ approval or denial of the request for extension are the same as those described in section 27.10 of this revenue procedure regarding providing additional information. .02 A taxpayer is entitled, as a matter of right, to only one conference, except as described under section 28.05 of this revenue procedure. This conference normally will be held at the group level and will be attended by a person who, at the time of the conference, has the authority to sign the letter ruling in his or her own name or for the group manager. If more than one group has taken an adverse position on an issue in a letter ruling request, or if the position ultimately adopted by one group will affect that adopted by another, a representative from each group with the authority to sign in his or her own name or for the group manager will attend the conference. If more than one subject is to be discussed at the conference, the discussion will constitute a conference on each subject. To have a thorough and informed discussion of the issues, the conference usually will be held after the group has had an opportunity to study the case. However, at the request of the taxpayer, the conference of right may be held earlier. No taxpayer has a right to appeal the action of a group to any other official of the Service. But see section 28.05 of this revenue procedure for situations in which the Service may offer additional conferences. Disallows verbatim recording of conferences Makes tentative recommendations on substantive issues .03 Because conference procedures are informal, no tape, stenographic, or other verbatim recording of a conference may be made by any party. .04 The senior Employee Plans Rulings and Agreements representative present at the conference ensures that the taxpayer has the opportunity to present views on all the issues in question. A Service representative explains Employee Plans Rulings and Agreements’ tentative decision on the substantive issues and the reasons for that decision. If the taxpayer asks Employee Plans Rulings and Agreements to limit the retroactive effect of any letter ruling or limit the revocation or modification of a prior letter ruling, an Employee Plans Rulings and Agreements representative will discuss the recommendation concerning this issue and the reasons for the recommendation. However, the representatives will not make a commitment regarding the conclusion that Employee Plans Rulings and Agreements intends to adopt. May offer additional conferences .05 Employee Plans Rulings and Agreements will offer the taxpayer an additional conference if, after the conference of right, an adverse holding is proposed, but on a new issue, or on the same issue but on different grounds from those discussed at the first conference. There is no right to another conference if a proposed holding is reversed at a higher level with a result less favorable to the taxpayer, if the grounds or arguments on which the reversal is based were discussed at the conference of right. The limit on the number of conferences to which a taxpayer is entitled does not prevent Employee Plans Rulings and Agreements from offering additional conferences, including conferences with an official higher than the group level, if Employee Plans Rulings and Agreements determines they are needed. Such conferences are not offered as a matter of course simply because the group has reached an adverse decision. In general, conferences with higher level officials are offered only if Employee Plans Rulings and Agreements determines that the case presents significant issues of tax policy or tax administration and that the consideration of these issues would be enhanced by additional conferences with the taxpayer. Bulletin No. 2023–1 237 January 3, 2023 Requires written confirmation of information presented at conference .06 The taxpayer should furnish to Employee Plans Rulings and Agreements any additional data, reasoning, precedents, etc., that were proposed by the taxpayer and discussed at the conference but not previously or adequately presented in writing. The taxpayer must furnish the additional information within 21 calendar days from the date of the conference. See section 27.06 of this revenue procedure for instructions on submission of additional information. If the additional information is not received within that time, a ruling will be issued on the basis of the information on hand or, if appropriate, no ruling will be issued. Procedures for requesting an extension of the 21-day period and notifying the taxpayer or the taxpayer’s representative of Employee Plans Rulings and Agreements’ approval or denial of the requested extension are the same as those stated in section 27.10 of this revenue procedure regarding submitting additional information. May schedule a pre- submission conference .07 Sometimes it will be advantageous to both Employee Plans Rulings and Agreements and the taxpayer to hold a conference before the taxpayer submits the letter ruling request to discuss substantive or procedural issues relating to a proposed transaction. These conferences are held only: if the identity of the taxpayer is provided to Employee Plans Rulings and Agreements if the taxpayer actually intends to make a request, if the request involves a matter on which a letter ruling is ordinarily issued, and at the discretion of Employee Plans Rulings and Agreements and as time permits. For example, a pre-submission conference will not be held on an issue if, at the time the pre-submission conference is requested, the identical issue is involved in the taxpayer’s return for an earlier period and that issue is being examined. See section 24 of this revenue procedure. Generally, the taxpayer will be asked to provide a statement of whether the issue is an issue on which a letter ruling is ordinarily issued and a draft of the letter ruling request or other detailed written statement of the proposed transaction, issue(s), and legal analysis before the pre-submission conference. If the taxpayer’s representative will attend the pre-submission conference, a power of attorney form is required. A Form 2848, Power of Attorney and Declaration of Representative, must be used to provide the representative’s authorization. Any discussion of substantive issues at a pre-submission conference is advisory only, is not binding on the Service, and cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). See section 3.06(2) of this revenue procedure. A letter ruling request submitted following a pre-submission conference will not necessarily be assigned to the group that held the pre-submission conference. May schedule a confer ence to be held by telephone . 08 A taxpayer may request that a conference of right be held by telephone. If the request is approved, the taxpayer will be advised when to call the Employee Plans Rulings and Agreements representatives (not a toll-free call). SECTION 29. WHAT EFFECT WILL A LETTER RULING HAVE? Has same effect as a determination letter Will not apply to another taxpayer . 01 Except as described in this section 29, a letter ruling issued by Employee Plans Rulings and Agreements has the same effect as a determination letter ruling issued to a taxpayer under Part II of this revenue procedure. . 02 A taxpayer may not rely on a letter ruling issued to another taxpayer. See § 6110(k)(3). January 3, 2023 238 Bulletin No. 2023–1 Will be used by the Service in examining the taxpayer’s return . 03 When determining a taxpayer’s liability, the Service must ascertain whether— (1) the conclusions stated in the letter ruling are properly reflected in the return; (2) the representations upon which the letter ruling was based reflected an accurate statement of the material facts; (3) the transaction was carried out substantially as proposed; and (4) there has been any change in the law that applies to the period during which the transaction or continuing series of transactions were consummated. May be revoked or modified if found to be in error .04 A letter ruling found to be in error or not in accord with the current views of the Service may be revoked or modified, unless it was part of a closing agreement as described in section 3.03 of this revenue procedure. If a letter ruling is revoked or modified, the revocation or modification applies to all years open under the period of limitation unless a request to limit the retroactive effect of a revocation or modification has been granted under § 7805(b). A request to limit the retroactive revocation or modification of a letter ruling issued by Employee Plans Rulings and Agreements should be submitted to the agent or specialist assigned to the case, and should otherwise follow the procedures described in section 23.08 of this revenue procedure. A letter ruling may be revoked or modified by— (1) a letter giving notice of revocation or modification to the taxpayer to whom the letter ruling was issued; (2) the enactment of legislation or ratification of a tax treaty; (3) a decision of the United States Supreme Court; (4) the issuance of temporary or final regulations; or (5) the issuance of a revenue ruling, revenue procedure, notice, or other statement published in the Internal Revenue Bulletin. Consistent with these provisions, if a letter ruling relates to a continuing action or a series of actions, it will ordinarily be applied until any one of the events described above occurs or until the letter ruling is specifically withdrawn by the Service. Publication of a notice of proposed rulemaking will not affect the application of any letter ruling issued under this revenue procedure. If a letter ruling is revoked or modified by a letter to the taxpayer, the letter will state whether the revocation or modification is retroactive. If a letter ruling is revoked or modified by the issuance of final or temporary regulations or by the publication of a revenue ruling, revenue procedure, notice, or other statement in the Internal Revenue Bulletin, the document may contain a statement as to its retroactive effect on letter rulings. Bulletin No. 2023–1 239 January 3, 2023 Letter ruling revoked or modified based on material change in facts applied retroactively . 05 The revocation or modification of a letter ruling will be applied retroactively to the taxpayer for whom the letter ruling was issued or to a taxpayer whose tax liability was directly involved in the letter ruling if— (1) there was a misstatement or omission of controlling facts; (2) the facts at the time of the transaction are materially different from the controlling facts on which the letter ruling was based; or (3) the transaction involves a continuing action or series of actions and the controlling facts change during the course of the transaction. Not otherwise generally revoked or modified retroactively .06 If the revocation or modification of a letter ruling occurs, for reasons other than a change in facts as described in section 29.05 of this revenue procedure, the revocation or modification will generally not be applied retroactively to the taxpayer for whom the letter ruling was issued or to a taxpayer whose tax liability was directly involved in the letter ruling provided that— (1) there was no change in the applicable law; (2) the letter ruling was originally issued for a proposed transaction; and (3) the taxpayer directly involved in the letter ruling acted in good faith in relying on the letter ruling, and revoking or modifying the letter ruling retroactively would be to the taxpayer’s detriment. If a letter ruling is revoked or modified by a letter with retroactive effect, the letter will, except in fraud cases, state the grounds on which the letter ruling is being revoked or modified and explain the reasons why it is being revoked or modified retroactively. W ill not apply to a similar transaction in same year or any other year . 07 A letter ruling issued by Employee Plans Rulings and Agreements on a particular transaction represents a holding of the Service on that transaction only. It will not apply to a similar transaction in the same year or any other year. Except in unusual circumstances, the application of that letter ruling to the transaction will not be affected by the later issuance of regulations (either temporary or final) if conditions (1) through (3) in section 29.06 of this revenue procedure are met. Retroactive effect of revocation or modification applied to a continuing action or series of actions May be retroactively revoked or modified if the transaction is completed without reliance on the letter ruling Taxpayer may request that retroactivity be limited .08 If a letter ruling is issued by Employee Plans Rulings and Agreements covering a continuing action or series of actions and the letter ruling is later found to be in error or no longer in accord with the position of the Service, the Service ordinarily will limit the retroactive effect of revocation or modification to a date that is not earlier than that on which the letter ruling is revoked or modified. .09 A taxpayer is not protected against retroactive revocation or modification of a letter ruling involving a transaction completed before the issuance of the letter ruling or involving a continuing action or series of actions occurring before the issuance of the letter ruling, because the taxpayer did not enter into the transaction relying on a letter ruling. .10 Under § 7805(b), the Service may prescribe the extent to which a revocation or modification of a letter ruling will be applied without retroactive effect. See section 23.08 of this revenue procedure for further explanation of the procedures for requesting relief under § 7805(b). January 3, 2023 240 Bulletin No. 2023–1 PART IV. USER FEES SECTION 30. WHAT ARE THE USER FEE REQUIREMENTS FOR REQUESTING ADVICE FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? Legislation authorizing user fees .01 Section 7528 directs the Secretary of the Treasury or a delegate (the “Secretary”) to establish a program requiring the payment of user fees for requests to Employee Plans Rulings and Agreements for letter rulings, opinion letters, determination letters, and similar requests. The fees charged under the program: (1) are to vary according to categories or subcategories established by the Secretary; (2) are to be determined after taking into account the average time for, and difficulty of, complying with requests in each category and subcategory; and (3) are payable in advance. Section 7528(b)(3) directs the Secretary to provide for exemptions and reduced fees under the program as the Secretary determines to be appropriate, but the average fee applicable to each category may not be less than the amount specified in § 7528. Requests to which user fees apply .02 In general, user fees apply to all requests for letter rulings, opinion letters, determination letters, advisory letters, and compliance statements submitted by or on behalf of taxpayers, sponsoring organizations or other entities as described in this revenue procedure. Requests to which a user fee is applicable must be accompanied by the appropriate fee as determined from the fee schedule set forth in Appendix A of this revenue procedure. The fee may be refunded in limited circumstances as set forth in section 30.10 of this revenue procedure. Requests and other actions that do not require the payment of a user fee .03 Actions that do not require the payment of a user fee include the following: (1) Elections pertaining to automatic extensions of time under § 301.9100-1; (2) Use of forms that are not to be filed with the Service (for example, no user fee is required in connection with the use of Form 5305, Traditional Individual Retirement Trust Account, or Form 5305–A, Traditional Individual Retirement Custodial Account, in order to adopt an individual retirement account under § 408(a)); (3) In general, plan amendments whereby sponsors amend their plans by adopting, word-for- word, the model language set forth in a revenue procedure which states that the amendment should not be submitted to the Service and that the Service will not issue new opinion, advisory, ruling or determination letters for plans that are amended solely to add the model language; and (4) Change in accounting period permitted by a published revenue procedure that permits an automatic change without prior approval of the Commissioner. Exemptions from the user fee requirements .04 The following exemptions, and only these exemptions, apply to the user fee requirements. No user fees are charged to: (1) Departments, agencies, or instrumentalities of the United States that certify that they are seeking a letter ruling, determination letter, opinion letter or similar letter on behalf of a program or activity funded by federal appropriations. The fact that a user fee is not charged has no bearing Bulletin No. 2023–1 241 January 3, 2023 User Fees under EPCRS on whether an applicant is treated as an agency or instrumentality of the United States for purposes of any provision of the Code except for § 7528. (2) Eligible employers within the meaning of § 7528(b)(2)(C)(ii) who request a determination letter with respect to a qualified plan within the first five plan years or, if later, the end of any remedial amendment period with respect to the plan that begins within the first five plan years. See, Instructions to Form 8717, User Fee for Employee Plans Determination Letter Request, and Notice 2002-1, 2002-1 CB 283, as amplified by Notice 2003-49, 2003-2 CB 294, and Notice 2017-1. .05 User fees for submissions under VCP are set forth in Appendix A of this revenue procedure. For further guidance on EPCRS, see Rev. Proc. 2021-30. Requests involving multiple offices, fee categories, issues, transactions, or entities .06 (1) Requests involving several offices. If a request dealing with only one transaction involves more than one of the offices within the Service (for example, one issue is under the jurisdiction of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) and another issue is under the jurisdiction of the Commissioner (Tax Exempt and Government Entities Division), the taxpayer is only responsible for the payment of the single highest fee that could be charged by any of the offices involved. See Rev. Proc. 2023-1, this Bulletin, for the user fees applicable to issues under the jurisdiction of the Office of Associate Chief Counsel (Corporate), the Office of Associate Chief Counsel (Financial Institutions and Products), the Office of Associate Chief Counsel (Income Tax and Accounting), the Office of Associate Chief Counsel (Passthroughs and Special Industries), the Office of Associate Chief Counsel (Procedure and Administration), the Office of Associate Chief Counsel (International), or the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). (2) Requests involving several fee categories. If a request dealing with only one transaction involves more than one fee category, the taxpayer is responsible only for payment of the single highest fee that could be charged for any of the categories involved. (3) Requests involving several issues. A request is treated as one request if the request deals with only one transaction but involves several issues. In such instances, only one fee applies; namely, the fee that applies to the particular category or subcategory involved. The addition of a new issue relating to the same transaction will not result in an additional fee, unless the issue places the transaction in a higher fee category. (4) Requests involving several unrelated transactions. In situations in which: (a) a request involves several transactions or (b) a request for a change in accounting period involves several unrelated items, each transaction or item is treated as a separate request. As a result, a separate fee will apply for each unrelated transaction or item. An additional fee also will apply if the request is changed by the addition of an unrelated transaction or item not contained in the initial submission. As a result, a separate fee will apply for each unrelated transaction or item. (5) Requests for separate letter rulings for several entities. Each entity involved in a transaction that desires a separate letter ruling in its own name must pay a separate fee. Payment of a separate fee is required regardless of whether the transaction or transactions may be viewed as related. Method of payment .07 January 3, 2023 242 Bulletin No. 2023–1 (1) Payment of user fees for determination letter applications. User fees for determination letter applications on Forms 5300 and 5310 must be paid in the appropriate amount by using www.pay. gov, utilizing the payment methods available on the website. User fees for determination letter applications on Forms 5307 and 5316 may be paid either by a check, payable to the United States Treasury in the appropriate amount, or by using www.pay.gov, utilizing the payment methods available on the website. Beginning July 1, 2023, user fees for determination letter applications on Forms 5307 and 5316 must be paid in the appropriate amount by using www.pay.gov, utilizing the payment methods available on the website. DO NOT use Form 8717 to submit user fee on applications submitted electronically. If the user fee is paid electronically, for a paper submission, payment confirmations are provided on the www.pay.gov portal and must be submitted along with the paper Form 8717. Additional information can be found at Frequently Asked Questions at www.pay.gov. (2) Payment of VCP user fees. User fees should be made using the payment methods available on www.pay.gov. The Service no longer accepts paper submissions under VCP. See Rev. Proc. 2021-30 for detailed procedures on the VCP submission process. (3) Payment of user fees for pre-approved plan submissions and letter rulings. Each request to Employee Plans Rulings and Agreements for a letter ruling, opinion letter, or advisory letter must be accompanied by a check, payable to the United States Treasury, in the appropriate amount. Taxpayers should not send cash. The payment of user fees for letter rulings and opinion letter and advisory letter applications may not be made on www.pay.gov. The check may be converted to an electronic fund transfer. “Electronic fund transfer” is the term used to refer to the process in which the Service electronically instructs the financial institution holding the funds to transfer funds from the account named on the check to the United States Treasury account, rather than processing the check. By sending a completed, signed check to the Service, the Service is authorized to copy the check and to use the account information from the check to make an electronic fund transfer from the account for the same amount as the check. If the electronic fund transfer cannot be processed for technical reasons, the Service is authorized to process the copy of the check. The electronic fund transfer from an account will usually occur within 24 hours, which is faster than a check is normally processed. Therefore, it is necessary to ensure there are sufficient funds available in the checking account when the check is sent to the Service. The check will not be returned to the applicant from its financial institution. Transmittal forms .08 (1) Form 8717, User Fee for Employee Plan Determination Letter Request (and a payment confirmation from www.pay.gov as described in section 30.07(1) of this revenue procedure, if applicable) and Form 8717-A, User Fee for Employee Plan Opinion Letter Requests are intended to be used as attachments to certain determination letter, opinion letter, and advisory letter applications. Space is reserved for the attachment of the applicable user fee check on Form 8717- A. No similar form has been designed to be used in connection with requests for letter rulings. Do not use Form 8717 for VCP submissions. Instead, see section 30.08(2) of this revenue procedure. For electronic submissions, www.pay.gov should be utilized for payment. See section 30.07(1) and section 6 of this revenue procedure for Form 5310 and Form 5300 submissions, and beginning July 1, 2023, for Form 5307 and Form 5316 submissions. Bulletin No. 2023–1 243 January 3, 2023 (2) VCP submissions must be made to the Service using www.pay.gov, on Form 8950, Application for Voluntary Correction Program (VCP) Submission under the Employee Plans Compliance Resolution System (EPCRS), embedded in www.pay.gov. If a VCP submission is made to the Service but the user fee payment did not go through or is less than the applicable amount, Form 8951, Additional User Fee Payment for Open Application for Voluntary Correction Program (VCP), embedded in www.pay.gov, should be submitted to make the new payment. A duplicate Form 8950 should not be submitted. Requests for a VCP pre-submission conference must also be made via www.pay.gov by submitting a Form 8950. See section 10.01(2) of Rev. Proc. 2021-30. Effect of nonpayment or payment of incorrect amount .09 Except as provided in Part II of this revenue procedure, it will be the general practice of Employee Plans Rulings and Agreements that: (1) The respective offices within Employee Plans Rulings and Agreements that are responsible for issuing letter ruling or determination letters will exercise discretion in deciding whether to immediately return submissions that are not accompanied by a correct user fee. In those instances in which the submission is not immediately returned, the requester will be contacted and given a reasonable period of time to submit the proper fee. If the proper fee is not received within a reasonable amount of time, the entire submission will then be returned. However, the respective offices of Employee Plans Rulings and Agreements, in their discretion, may defer substantive consideration of a submission until proper payment has been received. (2) An application for a determination or opinion or advisory letter will not be returned merely because Form 8717 or Form 8717-A was not attached. (3) The return of a submission to the requester may adversely affect substantive rights if the submission is not perfected and resubmitted to Employee Plans Rulings and Agreements within 30 days of the date of the cover letter returning the submission. (4) If a check is for more than the correct amount for Form 8717-A, per Appendix A of this revenue procedure, the submission will be accepted and the amount of the excess payment will be returned to the requester. (5) If the user fee included with the VCP submission is less than the user fee required by Appendix A or if no fee is submitted, the submission may not be processed. Refunds of user fees .10 In general, the user fee will not be refunded unless the Service declines to rule or make a determination on all issues for which a ruling or determination letter is requested. (1) The following situations are examples in which the fee will not be refunded: (a) The request for a letter ruling or determination letter is withdrawn at any time subsequent to its receipt by the Service, unless the only reason for withdrawal is that the Service has advised the requester that a higher user fee than was sent with the request is applicable and the requester is unwilling to pay the higher fee. For example, no fee will be refunded in cases in which the taxpayer has been advised that a proposed adverse ruling is contemplated and subsequently withdraws its submission. January 3, 2023 244 Bulletin No. 2023–1 (b) The request is procedurally deficient, although accompanied by the proper fee or an overpayment, and it is not timely perfected upon request. If there is a failure to timely perfect the request, the case will be considered closed and the failure to perfect will be treated as a withdrawal for purposes of this revenue procedure. (c) In the case of a request for a letter ruling, if the case has been closed by Employee Plans Rulings and Agreements because essential information has not been submitted timely, the request may be reopened and treated as a new request. However, the requester must pay another user fee before the case can be reopened. See section 27.11 of this revenue procedure. In the case of a request for a determination letter, if the case has been closed by EP Determinations because the requested information has not been timely submitted, the case will be closed and the user fee will not be refunded. See section 10.11 of this revenue procedure. (d) A letter ruling, determination letter, etc., is revoked in whole or in part at the initiative of the Service. The fee paid at the time the original letter ruling, determination letter, etc., was requested will not be refunded. (e) The request contains several issues and the Service rules on some, but not all, of the issues. The highest fee applicable to the issues on which the Service rules will not be refunded. (f) The requester asserts that a letter ruling the requester received covering a single issue is erroneous or not responsive (other than an issue on which the Service has declined to rule) and requests reconsideration. The Service, upon reconsideration, does not agree that the letter ruling is erroneous or is not responsive. (g) The situation is the same as described in subparagraph (f) of this section 30.10(1) except that the letter ruling covered several unrelated transactions. The Service, upon reconsideration, does not agree with the requester that the letter ruling is erroneous or is not responsive for all of the transactions, but does agree that it is erroneous as to one or more of the transactions. The fee accompanying the request for reconsideration will not be refunded except to the extent applicable to any transaction for which the Service agrees the letter ruling was in error. (h) The request is for a supplemental letter ruling, determination letter, etc., concerning a change in facts (whether significant or not) relating to the transaction on which the Service ruled. (i) The request is for reconsideration of an adverse or partially adverse letter ruling or a final adverse determination letter, and the taxpayer submits arguments and authorities not submitted before the original letter ruling or determination letter was issued. (2) The following situations are examples in which the user fee will be refunded: (a) In a situation to which section 30.10(1)(i) of this revenue procedure does not apply, the taxpayer asserts that a letter ruling the taxpayer received covering a single issue is erroneous or is not responsive (other than an issue on which the Service declined to rule) and requests reconsideration. Upon reconsideration, the Service agrees that the letter ruling is erroneous or is not responsive. The fee accompanying the taxpayer’s request for reconsideration will be refunded. Bulletin No. 2023–1 245 January 3, 2023 (b) In a situation to which section 30.10(1)(i) of this revenue procedure does not apply, the requester requests a supplemental letter ruling, determination letter, etc., to correct a mistake that Employee Plans Rulings and Agreements agrees it made in the original letter ruling, determination letter, etc., such as a mistake in the statement of facts or in the citation of a Code section. Once Employee Plans Rulings and Agreements agrees that it made a mistake, the fee accompanying the request for the supplemental letter ruling, determination letter, etc., will be refunded. (c) The taxpayer requests and is granted relief under § 7805(b) in connection with the revocation, in whole or in part, of a previously issued letter ruling. The fee accompanying the request for relief will be refunded. (d) In a situation to which section 30.10(1)(b) of this revenue procedure would otherwise apply, except that Employee Plans Rulings and Agreements does not request perfection of the procedural deficiencies in the application but rather does not accept the application and returns it to the requester, the fee accompanying the request will be returned or refunded. (e) In a situation to which section 30.10(1)(e) of this revenue procedure applies, the requester requests reconsideration of the Service’s decision not to rule on an issue. Once Employee Plans Rulings and Agreements agrees to rule on the issue, the fee accompanying the request for reconsideration will be refunded. (3) VCP Submissions. For refunds relating to VCP submissions, see Rev. Proc. 2021-30, section 10.07(2). Request for reconsideration of user fee .11 A taxpayer that believes the user fee charged by Employee Plans Rulings and Agreements for its request for a letter ruling, determination letter, etc., is either not applicable or incorrect and wishes to receive a refund of all or part of the amount paid (see section 30.10 of this revenue procedure) may request reconsideration of the user fee and, if desired, the opportunity for an oral discussion by sending a letter to the Service at the applicable Post Office Box or other address provided in section 31 of this revenue procedure. Both the incoming envelope and the letter requesting such reconsideration should be prominently marked “USER FEE RECONSIDERATION REQUEST.” No user fee is required for these requests. The request must be marked for the attention of the appropriate unit as listed in the table below. If the matter involves primarily:Mark for the attention of: Employee plans letter ruling requests and all other employee plans matters han- dled by Employee Plans Rulings andAgreements Employee Plans Rulings andAgreements Opinion letter and advisory letter requests pursuant to Rev. Proc. 2013-22 and Rev. Proc. 2021-37 Area Manager, EP Determinations Employee plans determination letter requests and opinion letter requests pursuant to Rev. Proc. 2017-41 Area Manager, EP Determinations Notwithstanding the above, user fees associated with submissions made under VCP are fixed, apply to all plan sponsors, and generally will not be refunded. However, if a taxpayer believes it submitted an incorrect fee relating to a VCP submission, the taxpayer should contact the Service employee who is working the case to determine whether a partial refund or additional payment is applicable. If the taxpayer is not in contact with a specific Service employee with regard to the taxpayer’s submission, the taxpayer may call the VCP Case Status telephone number at (626) 927- 2011. If there is a disagreement as to the fee that applies to a specific VCP case, the matter may be discussed with the Service employee’s manager. January 3, 2023 246 Bulletin No. 2023–1 SECTION 31. WHERE TO SUBMIT REQUESTS FOR LETTER RULINGS, OPINION LETTERS, ADVISORY LETTERS, DETERMINATION LETTERS, AND COMPLIANCE STATEMENTS FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS? Letter rulings and opinion letters . 01 Requests should be mailed to the appropriate address provided in this section 31.01. (1) Employee plans letter rulings under Rev. Procs. 87–50, 90–49, 2003–16, 2010–52, 2017- 55, 2017-57, or this revenue procedure: • Internal Revenue Service • Attention: EP Letter Rulings • P.O. Box 12192 • TE/GE Stop 31A Team 105 • Covington, KY 41012-0192 (2) Employee plan opinion letters under Rev. Procs. 87–50, 97–29, 98–59, or 2010–48: • Internal Revenue Service • Attention: EP Opinion Letters • P.O. Box 12192 • TE/GE Stop 31A Team 105 • Covington, KY 41012-0192 Announcement 2022-6 temporarily suspends the opinion letter program for prototype IRAs (traditional, Roth and SIMPLE IRAs), SEPs (including salary reduction SEPs (SARSEPs)), and SIMPLE IRA plans. Note: Hand-delivered requests must be marked RULING REQUEST SUBMISSION. The delivery should be made to the following address between the hours of 8:30 a.m. and 4:00 p.m., where a receipt will be given: • Courier’s Desk • Internal Revenue Service • Attention: EP Letter Rulings • TE/GE Stop 31A Team 105 Bulletin No. 2023–1 247 January 3, 2023 • 7940 Kentucky Drive • Florence, KY 41042 Determination letters .02 Requests for determination letters on the qualified status of employee plans under § 401, 403(a), 409, or 4975(e)(7), whether a plan meets the requirements of § 403(b), and the exempt status of any related trust under § 501 are handled by the EP Determinations Office. Requests permissibly submitted on paper should be sent to the Internal Revenue Service at the address shown below: • Internal Revenue Service • Attention: EP Determination Letters • P.O. Box 12192 • TE/GE Stop 31A Team 105 • Covington, KY 41012-0192 Opinion and advisory letters .03 (1) The following types of requests and applications are handled by EP Determinations and should be sent to the Service at the address shown below: (a) requests for opinion letters on the form of pre-approved employee plans under § 401 or 403(a) for the third six-year remedial amendment cycle (and subsequent cycles), pursuant to Rev. Proc. 2017-41; and (b) requests for § 403(b) prototype opinion letters and for § 403(b) VS advisory letters for § 403(b) pre-approved plans under Rev. Proc. 2013–22: • Internal Revenue Service • Attn. Pre-Approved Plans Coordinator • P.O. Box 2508 • Room 6-403: Group 7521 • Cincinnati, OH 45201 (c) requests of § 403(b) pre-approved plans for opinion letters under Rev. Proc. 2021-37: • Internal Revenue Service • Attn. Pre-Approved Plans Coordinator • P.O. Box 2508 • Room 6-403: Group 7521 • Cincinnati, OH 45201 January 3, 2023 248 Bulletin No. 2023–1 (2) Applications shipped by Express Mail or a delivery service for all of the above except for pre-approved employee plans should be sent to: • Internal Revenue Service • Attention: EP Determination Letters • TE/GE Stop 31A Team 105 • 7940 Kentucky Drive • Florence, KY 41042 (3) Applications shipped by Express Mail or a delivery service for pre-approved employee plans should be sent to: • Internal Revenue Service • Attn: Pre-Approved Plans Coordinator • 550 Main Street • Room 6-403: Group 7521 • Cincinnati, OH 45202 .04 VCP submissions (including requests for pre-submission conferences) may not be mailed to the Service. If this occurs, the submissions will be returned to the applicant, including any submitted paper checks. VCP submissions, including payment of the user fee, are made to the Service on www.pay.gov. For further details, see Form 8950 instructions and sections 10 and 11 of Rev. Proc. 2021-30. Rev. Proc. 2022-4 is superseded. VCP compliance statements – electronic submissions only SECTION 32. WHA T IS THE EFFECT OF THIS REVENUE PROCEDURE ON OTHER DOCUMENTS? SECTION 33. EFFECTIVE DATE SECTION 34. PAPERWORK REDUCTION ACT T his revenue procedure is effective January 3, 2023. The collections of information contained in this revenue procedure have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. § 3507) under control number 1545-0047. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. The collections of information in this revenue procedure are in sections 6.02, 6.03, 6.05, 6.06, 10.03, 10.08, 10.11, 10.14, 10.15, 10.17, 11.04, 16, 17, 18, 19A, 19B, 20A, 20B, 21.02, 22.03, 23.02, 23.08, 27.05, 27.06, 27.07, 27.08, 27.09, 27.10, 27.13, 28.01, 28.06, 28.07, and 29.10 of this revenue procedure, and in Appendices C, E, and F of this revenue procedure. This information Bulletin No. 2023–1 249 January 3, 2023 is required to evaluate and process the request for a letter ruling or determination letter, and with respect to determination letters, information collected will be used to determine whether a plan is entitled to favorable tax treatment as a qualified plan. In addition, this information will be used to help the Service delete certain information from the text of the letter ruling or determination letter before it is made available for public inspection, as required by §§ 6110 and 6104. The collections of information are required to obtain a letter ruling or determination letter. The likely respondents are individuals, businesses or other for-profit institutions, tax exempt organizations, and government entities. The estimated total annual reporting and/or recordkeeping burden with respect to letter ruling requests is 769 hours. The estimated total annual reporting and/or recordkeeping burden with respect to determination letters is 38,067 hours. The estimated annual burden per respondent/recordkeeper varies from 15 minutes to 40 hours, depending on individual circumstances and the type of request involved, with an estimated average burden of 6.01 hours for letter ruling requests and 3.02 hours for determination letter requests. The estimated number of respondents and/or recordkeepers is 128 for letter rulings and 12,605 for determination letters. For letter rulings, the estimated annual frequency of responses is one request per applicant, except that a taxpayer requesting a letter ruling may also request a pre-submission conference. For determination letters, the estimated annual frequency of responses (used for reporting requirements only) is once every three years. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by § 6103. DRAFTING INFORMATION The principal author of this revenue procedure is Amy Moskowitz of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). For further information regarding submission and processing of requests under this revenue procedure, contact Robin Joecken, Employee Plans, at 513-975-6365 (not a toll-free number). January 3, 2023 250 Bulletin No. 2023–1 APPENDIX A SCHEDULE OF USER FEES The amount of the user fee payable with respect to each category or subcategory of submission is as set forth in the following schedule. CATEGORYUSER FEE .01 Letter ruling requests (1) Computation of exclusion for annuitant under § 72$1,000 (2) Change in plan year (Form 5308, Request for Change in Plan/Trust Year) $1,000 Note: No user fee is required if the requested change is permitted to be made pursuant to the procedure for automat- ic approval set forth in Rev. Proc. 87-27, 1987-1 CB 769. In such a case, Form 5308 should not be submitted to the Service. (3) Five-Year Automatic Extension of the Amortization Period$7,500 (4) All other letter rulings under jurisdiction of the Employee Plans Office (see section 24.01 of this revenue proce- dure) $12,500 .02 Opinion letters on prototype individual retirement accounts and/or annuities, SEPs, SIMPLE IRAs, SIMPLE IRA Plans, Roth IRAs and dual-purpose IRAs (until further notice, Announcement 2022-6 temporarily suspends the issuance of opinion letters on IRAs) $2,500 Note: If a mass submitter submits, in any 12-month period ending January 31, more than 300 applications on behalf of word-for-word adopters of prototype IRAs or prototype dual-purpose IRAs with respect to a particular plan doc- ument, only the first 300 such applications will be subject to the fee; no fee will apply to those in excess of the first 300 such applications submitted within the 12-month period. .03 Opinion letters on master and prototype plans submitted pursuant to Rev. Proc. 2015-36 (1) Assumption of sponsorship of an approved M&P plan, without any amendment to the plan document, by a new entity, as evidenced by a change of employer identification number, per basic plan document $300 (2) Change in name and/or address of sponsor of an approved M&P plan, per basic plan documentNone .04 Advisory letters on VS plans submitted pursuant to Rev. Proc. 2015-36 (1) Assumption of sponsorship of an approved VS plan, without any amendment to the plan document, by a new entity, as evidenced by a change of employer identification number, per basic plan document $300 (2) Change in name and/or address of practitioner of an approved VS specimen plan, per basic plan documentNone .05 Opinion letters on pre-approved plans submitted pursuant to Rev. Proc. 2017-41 (1) Mass submitter and non-mass submitter plans with adoption agreements (a) per basic plan document, with one adoption agreement$16,000 (b) per each additional adoption agreement$11,000 (2) Mass submitter and non-mass submitter single document plans (no adoption agreements) (a) per each single document plan$28,000 (3) Provider’s word-for-word adoption of mass submitter’s basic plan document per adoption agreement or single document plan $300 (4) Provider’s minor modification of mass submitter’s basic plan document per adoption agreement or single docu- ment plan $1,000 (5) Assumption of sponsorship of a pre-approved plan, without any amendment to the plan document, by a new entity, as evidenced by a change of employer identification number, per basic plan document. $300 (6) Change in name and/or address of a provider of a pre-approved plan per basic plan documentNone .06 Opinion letters on pre-approved plans submitted pursuant to Rev. Proc 2021-37 (1) Mass submitter and non-mass submitter plans with adoption agreements (a) per basic plan document, with one adoption agreement$16,000 (b) per each additional adoption agreement$11,000 (2) Mass submitter and non-mass submitter single document plans (no adoption agreements) (a) per each single document plan$28,000 Bulletin No. 2023–1 251 January 3, 2023 CATEGORYUSER FEE (3) Provider’s word-for-word adoption of mass submitter’s basic plan document per adoption agreement or single document plan $300 (4) Provider’s minor modification of mass submitter’s basic plan document per adoption agreement or single docu- ment plan $1,000 (5) Assumption of sponsorship of a pre-approved plan, without any amendment to the plan document, by a new entity, as evidenced by a change of employer identification number, per basic plan document $300 (6) Change in name and/or address of a provider of a pre-approved plan per basic plan documentNone .07 Determination letters (1) Determination Letters: (a) Form 5300 (Application for Determination for Employee Benefit Plan)$2,700 (b) Form 5300 (Application for Determination for Employee Benefit Plan, § 403(b) plans, with 100 or more participants) Note: the number of participants is determined on the last day of the plan year before submission. $2,700 (c) Form 5300 (Application for Determination for Employee Benefit Plan, § 403(b) small plans with fewer than 100 participants) Note: the number of participants is determined on the last day of the plan year before submission. $300 (d) Form 5307 (Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans) $1,000 (e) Form 5310 (Application for Determination for Terminating Plan)$3,500 (f) Multiple employer qualified plans (Form 5300)$4,000 (g) Multiple employer qualified plans (Form 5310), regardless of number of participants$4,000 (2) Group trusts contemplated by Rev. Rul. 81-100, 1981-1 CB 326, Rev. Rul. 2004-67, 2004-2 CB 28, Rev. Rul. 2011-1, 2011-2 IRB 251, Rev. Rul. 2014-24, 2014-37 IRB 529. Form 5316, Application for Group or Pooled Trust Ruling, is available for group trust submissions. $1,000 .08 Opinion letters on § 403(b) prototype plans pursuant to Rev. Proc. 2013-22 and Rev. Proc. 2014-28 (1) Section 403(b) prototype plan of a word-for-word identical adopter of a § 403(b) prototype mass submitter’s basic plan document, per adoption agreement $300 (2) Section 403(b) prototype plan of a minor modifier of a § 403(b) prototype mass submitter’s basic plan docu- ment, per adoption agreement $1,000 (3) Assumption of sponsorship of an approved § 403(b) prototype plan, without any amendment to the plan docu- ment, by a new entity, as evidenced by a change of employer identification number, per basic plan document $300 (4) Change in name and/or address of sponsor of an approved § 403(b) prototype plan, per basic plan documentNone .09 Advisory letters on § 403(b) VS plans pursuant to Rev. Proc. 2013-22 and Rev. Proc. 2014-28 (1) Section 403(b) VS specimen plan of a word-for-word identical adopter of a mass submitter specimen plan$300 (2) Section 403(b) VS specimen plan of a minor modifier of a § 403(b) VS mass submitter specimen plan (or per adoption agreement if applicable) $1,000 (3) Assumption of sponsorship of an approved § 403(b) VS plan, without any amendment to the plan document, by a new entity, as evidenced by a change of employer identification number, per specimen plan $300 (4) Change in name and/or address of practitioner of an approved § 403(b) VS specimen plan, per specimen planNone .10 User Fees for VCP submissions under EPCRS Revenue Procedure 2021-30 (1) Regular submissions under VCP. (For a special rule relating to terminating Orphan Plans see section 4.08 of Rev. Proc. 2021-30): Plans with assets of— (a) $500,000 or less$1,500 (b) Over $500,000 to $10,000,000$3,000 (c) Over $10,000,000$3,500 January 3, 2023 252 Bulletin No. 2023–1 CATEGORYUSER FEE Note: In general. User fees under this section are determined based on end of year net assets of a plan as reported on the most recently filed Form 5500 series return. Plans not required to file Form 5500 Series. If the plan sponsor is not required to file a Form 5500 series return with regard to a plan eligible for VCP, the amount of net assets for user fee purposes generally will be the amount of net assets as of the last day of the most recently completed plan year preceding the date of the VCP submission. However, if this information has not been compiled by the time the plan sponsor is ready to make a VCP submission to the Service, the plan sponsor may use the amount of net assets associated with the most recently completed prior plan year for which information on the amount of net assets is available. This exception will not apply if the VCP submission is mailed to the Service more than seven months after the close of the most recently completed plan year preceding the date of the VCP submission. (2) VCP fee for Group Submissions, initial fee for first 20 plans$10,000 Note: The fee for a group submission is based on the number of plans affected by the failure as described in the compliance statement. The initial fee is due at the time of submission. An additional fee is due equal to the product of the number of plans in excess of 20 multiplied by $250. The maximum fee for a group submission is $50,000. If additional plans are added following the group submission, the additional fee is paid subject to the $50,000 maxi- mum fee. With respect to pre-approved plans, the fee is determined based on the number of basic plan documents submitted and the number of employers who have adopted each basic plan document by using an adoption agree- ment associated with that basic plan document. See Form 8951, User Fee for Application for Voluntary Correction Program (VCP), and Rev. Proc. 2021-30, sections 10.11 and 11.06. Bulletin No. 2023–1 253 January 3, 2023 APPENDIX B1 SAMPLE NOTICE TO INTERESTED PARTIES (QUALIFIED PLANS) The sample notice set forth below may be used to satisfy the requirements of section 20A of this revenue procedure. NOTICE TO INTERESTED PARTIES 1. Notice To:______________________________[describe class or classes of interested parties] An application is to be made to the Internal Revenue Service for an advance determination [on the qualification of the following employee pension benefit plan]: 2. ________________________________________ (name of plan) 3. ________________________________________ (plan number) 4. ________________________________________ (name and address of applicant) 5. ________________________________________ (applicant EIN) 6. ________________________________________ (name and address of plan administrator) 7. The application will be filed on _______________ for an advance determination as to whether the plan meets the qualification requirements of § 401 or § 403(a) of the Internal Revenue Code (Code), with respect to the plan’s _________________________ [initial plan qualification, termination, or partial termination]. The application will be filed with: • Internal Revenue Service • Attention: EP Determination Letters • P.O. Box 12192 • TE/GE Stop 31A Team 105 • Covington, KY 41012-0192 8. The employees eligible to participate under the plan are: 9. The Internal Revenue Service [has/has not] previously issued a determination letter with respect to the qualification of this plan. RIGHTS OF INTERESTED PARTIES 10. You have the right to submit to EP Determinations, either individually or jointly with other interested parties, your comments as to whether this plan meets the qualification requirements of the Code. Label your comments “Interested Party Statement”. Include the EIN, plan name, and plan number in your correspondence. Also include your contact information (mailing address and phone number) in case we need to contact you. Your comments to EP Determinations should be submitted to: • Internal Revenue Service • EP Determinations January 3, 2023 254 Bulletin No. 2023–1 • Attn: Customer Service Manager • P.O. Box 2508 • Cincinnati, OH 45202 You may instead, individually or jointly with other interested parties, request the DOL to submit, on your behalf, comments to EP Determinations regarding qualification of the plan. If the DOL declines to comment on all or some of the matters you raise, you may, individually, or jointly if your request was made to the DOL, submit your comments on these matters directly to EP Determinations at the Cincinnati address above. REQUESTS FOR COMMENTS BY THE DOL 11. The DOL may not comment on behalf of interested parties unless requested to do so by the lesser of 10 employees or 10 percent of the employees who qualify as interested parties. The number of persons needed for the DOL to comment with respect to this plan is _____________________. If you request the DOL to comment, your request must be in writing and must specify the matters upon which comments are requested, and must also include: (1) the information contained in items 2 through 5 of this Notice; and (2) the number of persons needed for the DOL to comment. A request to the DOL to comment should be addressed as follows: • Deputy Assistant Secretary • Employee Benefits Security Administration • U.S. Department of Labor, • 200 Constitution Avenue, N.W. • Washington, D.C. 20210 • Attention: 3001 Comment Request COMMENTS TO THE INTERNAL REVENUE SERVICE 12. Comments submitted by you to EP Determinations must be in writing and received by ________________. However, if there are matters that you request the DOL to comment upon on your behalf, and the DOL declines, you may submit comments on these matters to EP Determinations to be received by it within 15 days from the time the DOL notifies you that it will not comment on a particular matter, or by ____________, whichever is later, but not after ____________. A request to the DOL to comment on your behalf must be received by it by _________________ if you wish to preserve your right to comment on a matter upon which the DOL declines to comment, or by ____________ if you wish to waive that right. ADDITIONAL INFORMATION 13. Detailed instructions regarding the requirements for notification of interested parties may be found in sections 19A and 20A of Rev. Proc. 2023-4, IRB 2023-1, 162. Additional information concerning this application (including, if applicable, the following: an updated copy of the plan and related trust; the application for determination; any additional documents relating to the application that have been submitted to the Service; and copies of section 19A of Rev. Proc. 2023-4) is available at _________________ during the hours of _________________ for inspection and copying. (There is a nominal charge for copying and/or mailing.) Bulletin No. 2023–1 255 January 3, 2023 APPENDIX B2 SAMPLE NOTICE TO INTERESTED PERSONS (§ 403(b) PLANS) The sample notice set forth below may be used to satisfy the requirements of section 20B of this revenue procedure. NOTICE TO INTERESTED PERSONS 1. Notice To:______________________________[describe class or classes of interested persons] An application is to be made to the Internal Revenue Service for an advance determination that a § 403(b) plan meets the require- ments of § 403(b): 2. ________________________________________ (name of plan) 3. ________________________________________ (plan number) 4. ________________________________________ (name and address of applicant) 5. ________________________________________ (applicant EIN) 6. ________________________________________ (name and address of plan administrator) 7. The application will be filed on _______________ for an advance determination as to whether the plan meets the requirements of § 403(b) of the Internal Revenue Code (Code), with respect to the plan’s _________________________ [initial determination as to whether the plan meets the requirements of § 403(b) or the determination upon plan termination that the plan meets the requirements of § 403(b)]. The application will be filed with: • Internal Revenue Service • Attention: EP Determination Letters • P.O. Box 12192 • TE/GE Stop 31A Team 105 • Covington, KY 41012-0192 8. The employees eligible to participate under the plan are: 9. The Internal Revenue Service [has/has not] previously issued a determination letter whether this plan meets the requirements of § 403(b). RIGHTS OF INTERESTED PERSONS 10. You have the right to submit to EP Determinations, either individually or jointly with other interested persons, your comments as to whether this plan meets the requirements of § 403(b). Label your comments “Interested Person Statement”. Include the EIN, plan name, and plan number in your correspondence. Also include your contact information (mailing address and phone number) in case we need to contact you. Your comments to EP Determinations should be submitted to: January 3, 2023 256 Bulletin No. 2023–1 • Internal Revenue Service • EP Determinations • Attn: Customer Service Manager • P.O. Box 2508 • Cincinnati, OH 45202 COMMENTS TO THE INTERNAL REVENUE SERVICE 11. Comments submitted by you to EP Determinations must be in writing and received by ________________. ADDITIONAL INFORMATION 12. Detailed instructions regarding the requirements for notification of interested persons may be found in sections 19B and 20B of Rev. Proc. 2023-4, IRB 2023-1, 162. Additional information concerning this application (including, if applicable, the following: an updated copy of the plan and related custodial account or annuity; the application for determination; any additional documents relating to the application that have been submitted to the Service; and copies of section 19B of Rev. Proc. 2023-4) is available at _________________ during the hours of _________________ for inspection and copying. (There is a nominal charge for copying and/or mailing.) Bulletin No. 2023–1 257 January 3, 2023 APPENDIX C CHECKLIST FOR § 401(h) AND § 420 DETERMINATION LETTERS As part of a § 401(h) or § 420 determination letter request described in section 18 of this revenue procedure the following checklist must be completed and attached to the determination letter request. If the request relates to § 401(h) but not to § 420, complete Part I only. If the request relates to § 420, complete Parts I and II. Answer each question by circling “Yes” or “No.” If a question contains a place for a section number, insert the section number that gives the information called for by a yes answer to a question. PART I CIRCLESECTION 1. Does the Plan contain a medical benefits account within the meaning of § 401(h) of the Internal Revenue Code (Code)? If the medical benefits account is a new provision, items “a” through “h” should be completed. Yes No___ a. Does the medical benefits account specify the medical benefits that will be available and con- tain provisions for determining the amount that will be paid? Yes No___ b. Does the medical benefits account specify who will benefit?Yes No___ c. Does the medical benefits account indicate that such benefits, when added to any life insurance protection in the Plan, will be subordinate to retirement benefits? (This requirement will not be satisfied unless the amount of actual contributions to provide § 401(h) benefits (when added to actual contributions for life insurance protection under the Plan) does not exceed 25 percent of the total actual contributions to the Plan (other than contributions to fund past service credits), determined on an aggregate basis since the inception of the § 401(h) arrangement.) Yes No___ d. Does the medical benefits account maintain separate accounts with respect to contributions to key employees (as defined in § 416(i)(1)) to fund such benefits? Yes No___ e. Does the medical benefits account state that amounts contributed must be reasonable and ascer- tainable? Yes No___ f. Does the medical benefits account provide for the impossibility of diversion prior to satisfac- tion of liabilities (other than item “7” below)? Yes No___ g. Does the medical benefits account provide for reversion upon satisfaction of all liabilities (oth- er than item “7” below)? Yes No___ h. Does the medical benefits account provide that forfeitures must be applied as soon as possible to reduce employer contributions to fund the medical benefits? Yes No___ PART IICIRCLESECTION 2. Does the Plan limit transfers to “Excess Assets” as defined in § 420(e)(2)?Yes No___ 3. Does the Plan provide that only one transfer may be made in a taxable year?Yes No___ 4. Does the Plan provide that the amount transferred shall not exceed the amount reasonably estimated to be paid for qualified current retiree liabilities? Yes No___ 5. Does the Plan provide that no transfer will be made after December 31, 2025?Yes No___ 6. Does the Plan provide that transferred assets and income attributable to such assets shall be used only to pay qualified current retiree liabilities for the taxable year of transfer? Yes No___ 7. Does the Plan provide that any amounts transferred (plus income) that are not used to pay qualified current retiree liabilities shall be transferred back to the defined benefit portion of the Plan? Yes No___ 8. Does the Plan provide that amounts paid out of a health benefits account or an applicable life insur- ance account will be treated as paid first out of transferred assets and income attributable to those assets? Yes No___ 9. Does the Plan provide that participants’ accrued benefits become nonforfeitable on a termination basis (i) immediately prior to transfer, or (ii) in the case of a participant who separated within 1 year before the transfer, immediately before such separation? Yes No___ 10. In the case of transfers described in § 420(b)(4) relating to 1990, does the Plan provide that benefits will be recomputed and become nonforfeitable for participants who separated from service in such prior year as described in § 420(c)(2)? Yes No___ January 3, 2023 258 Bulletin No. 2023–1 11. Does the Plan provide that transfers will be permitted only if each group health plan or arrange- ment or group-term life insurance plan, as applicable contains provisions satisfying § 420(c)(3), as amended? Yes No___ 12. Does the Plan define “applicable employer cost”, “cost maintenance period” and “benefit mainte- nance period”, as needed, consistently with § 420(c)(3), as amended? Yes No___ 13. Does the Plan provide that transferred assets cannot be used for key employees?Yes No___ Bulletin No. 2023–1 259 January 3, 2023 APPENDIX D SAMPLE FORMAT FOR A LETTER RULING REQUEST FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS (Insert the date of request) [for Employee Plans] Internal Revenue Service Attention: EP Letter Rulings P.O. Box 12192 TE/GE Stop 31A Team 105 Covington, KY 41012-0192 Dear Sir or Madam: (Insert the name of the taxpayer) (the “Taxpayer”) requests a ruling on the proper treatment of (insert the subject matter of the letter ruling request) under § (insert the number) of the Internal Revenue Code. [If the taxpayer is requesting expedited handling, the letter ruling request must contain a statement to that effect. This statement must explain the need for expedited handling. See section 6.03(3) of this revenue procedure.] A. STATEMENT OF FACTS 1. Taxpayer Information [Provide the statements required by sections 6.02(1)(a), (b), and (c) of Rev. Proc. 2023-4, 2023-1 IRB 162. Hereafter, all referenc- es are to Rev. Proc. 2023-4, unless otherwise noted.)] For example, a taxpayer that maintains a qualified employee retirement plan and files an annual Form 5500 series of returns may include the following statement to satisfy sections 6.02(1)(a), (b), and (c): The Taxpayer is a construction company with principal offices located at 100 Whatever Drive, Wherever, Maryland 12345, and its telephone number is (123) 456-7890. The Taxpayer’s federal employer identification number is 00-1234567. The Taxpayer uses the Form 5500 series of returns on a calendar year basis to report its qualified employee retirement plan and trust. 2. Detailed Description of the Transaction. [The ruling request must contain a complete statement of the facts relating to the transaction that is the subject of the letter ruling request. This statement must include a detailed description of the transaction, including material facts in any accompanying docu- ments, and the business reasons for the transaction. See sections 6.02(1)(b), 6.02(1)(c), and 6.02(2).] B. RULING REQUESTED [The ruling request should contain a concise statement of the ruling requested by the taxpayer.] C. STATEMENT OF LAW [The ruling request must contain a statement of the law in support of the taxpayer’s views or conclusion, including any authorities believed to be contrary to the position advanced in the ruling request. This statement must also identify any pending legislation that may affect the proposed transaction. See sections 6.02(6), 6.02(7), and 6.02(8).] D. ANALYSIS [The ruling request must contain a discussion of the facts and an analysis of the law. See sections 6.02(3), 6.02(6), 6.02(7), and 6.02(8).] January 3, 2023 260 Bulletin No. 2023–1 E. CONCLUSION [The ruling request should contain a statement of the taxpayer’s conclusion on the ruling requested.] F. PROCEDURAL MATTERS 1. Rev. Proc. 2023–4 statements a. [The statement required by section 6.02(4).] b. [The statement required by section 6.02(5).] c. [The statement required by section 6.02(6) regarding whether the law in connection with the letter ruling request is uncertain and whether the issue is adequately addressed by relevant authorities.] d. [The statement required by section 6.02(7) if the taxpayer determines that there are no contrary authorities.] e. [If the taxpayer wants to have a conference on the issues involved in the letter ruling request, the ruling request should contain a statement to that effect. See section 6.03(5).] f. [If the taxpayer is requesting the letter ruling to be issued by fax, the ruling request should contain a statement to that effect. See section 6.03(4).] g. [If the taxpayer is requesting separate letter rulings on multiple issues, the letter ruling request should contain a statement to that effect. See section 6.03(1).] 2. Administrative a. A Power of Attorney is enclosed. [See sections 6.02(12) and 6.03(2).] b. The deletions statement and checklist required by Rev. Proc. 2023–4 are enclosed. [See sections 6.02(9), (16), and (18).] c. The required user fee is enclosed. [See section 6.02(15).] Very truly yours, (Insert the name of the taxpayer or the taxpayer’s authorized representative) By: _____ _____ Signature Date Typed or printed name of person signing request DECLARATION: [See section 6.02(14).] Under penalties of perjury, I declare that I have examined this request, including accompanying documents, and, to the best of my knowledge and belief, the request contains all the relevant facts relating to the request and such facts are true, correct, and complete. (Insert the name of the taxpayer) By: _________ Signature Title Date _________ Typed or printed name of person signing declaration Bulletin No. 2023–1 261 January 3, 2023 APPENDIX E CHECKLIST FOR LETTER RULINGS FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS IS YOUR RULING REQUEST COMPLETE? INSTRUCTIONS The Service will be able to respond more quickly to your letter ruling request if it is carefully prepared and complete. To ensure that your request is in order, use this checklist. Complete the four items of information requested before the checklist. Answer each question by circling “Yes,” “No,” or “N/A.” If a question contains a place for a page number, insert the page number (or numbers) of the request that gives the information called for by a yes answer to a question. Sign and date the checklist (as taxpayer or autho- rized representative) and place it on top of your request. If you are an authorized representative submitting a request for a taxpayer, you must include a completed checklist with the request or the request will either be returned to you or substantive consideration of it will be deferred until a completed checklist is submitted. If you are a taxpayer preparing your own request without professional assistance, an incomplete checklist will not be cause for returning your request or deferring substantive consideration of the request. However, you should still complete as much of the checklist as possible and submit it with your request. TAXPAYER’S NAME ________________________________________ TAXPAYER’S I.D. No. ______________________________________ ATTORNEY/P.O.A. __________________________________________ PRIMARY CODE SECTION _____________________________________ CIRCLE ONEITEM Yes No N/A1. Does your request involve an issue under the jurisdiction of Employee Plans Rulings and Agreements? See section 24.01 of Rev. Proc. 2023-4, for the list of issues on which Employee Plans Rulings and Agreements issues letter rulings. See section 5 of Rev. Proc. 2023-4, for issues under the jurisdiction of other offices. (Here- after, all references are to Rev. Proc. 2023-4, unless otherwise noted.) Yes No N/A Page ____ 2. If the request deals with a completed transaction, have you filed the return for the year in which the transac- tion was completed? See section 24.01. Yes No3. Are you requesting a letter ruling on a hypothetical situation or question? See section 25.03. Yes No4. Are you requesting a letter ruling on alternative plans of a proposed transaction? See section 25.03. Yes No5. Are you requesting the letter ruling for only part of an integrated transaction? See section 25.04. Yes No6. Have you submitted another letter ruling request for the transaction covered by this request? Yes No7. Are you requesting the letter ruling for a business, trade, industrial association, or similar group concerning the application of tax law to its members? See section 24.06. Yes No Page ____ 8. Have you included a complete statement of all the facts relevant to the transaction? See section 6.02(1). Yes No N/A9. Have you submitted with the request true copies of all wills, deeds, plan documents, and other documents relevant to the transaction, and labeled and attached them in alphabetical sequence? See section 6.02(2). Yes No Page ____ 10. Have you included, rather than merely incorporated by reference, all material facts from the documents in the request? Are they accompanied by an analysis of their bearing on the issues that specifies the document provisions that apply? See section 6.02(3). Yes No Page ____ 11. Have you included the required statement regarding whether the same issue in the letter ruling request is in an earlier return of the taxpayer or in a return for any year of a related taxpayer? See section 6.02(4). Yes No Page ____ 12. Have you included the required statement regarding whether the Service previously ruled on the same or similar issue for the taxpayer, a related taxpayer, or a predecessor? See section 6.02(5). January 3, 2023 262 Bulletin No. 2023–1 CIRCLE ONEITEM Yes No Page ____ 13. Have you included the required statement regarding whether the taxpayer, a related taxpayer, a predecessor, or any representatives previously submitted the same or similar issue but withdrew it before the letter ruling was issued? See section 6.02(5). Yes No Page ____ 14. Have you included the required statement regarding whether the law in connection with the request is un- certain and whether the issue is adequately addressed by relevant authorities? See section 6.02(6). Yes No Page ____ 15. Have you included the required statement of relevant authorities in support of your views? See section 6.02(6). Yes No N/A Page ____ 16. Does your request discuss the implications of any legislation, tax treaties, court decisions, regulations, notices, revenue rulings, or revenue procedures you determined to be contrary to the position advanced? See section 6.02(7), which states that taxpayers must inform the Service of such authorities. Yes No N/A Page ____ 17. If you determined that there are no contrary authorities, have you included a statement to this effect in your request? See section 6.02(7). Yes No N/A Page ____ 18. Have you included in your request a statement identifying any pending legislation that may affect the pro- posed transaction? See section 6.02(8). Yes No19. Is the request accompanied by the deletions statement required by section 6110? See section 6.02(9). Yes No N/A Page____ 20. Have you (or your authorized representative) signed and dated the request? See section 6.02(10). Yes No N/A21. If the request is signed by your representative, or if your representative will appear before the Service in connection with the request, is the request accompanied by a properly prepared and signed power of attorney (Form 2848) with the signatory’s name typed or printed? See section 6.02(12). Yes No N/A Page____ 22. Have you included, signed and dated, the penalties of perjury statement in the form required by section 6.02(14)? Yes No N/A23. Have you included the correct user fee with the request and made your check or money order payable to the United States Treasury? See section 6.02(15) and section 30 and Appendix A, for the correct amount and additional information on user fees. Yes No N/A24. Are you submitting your request in duplicate if necessary? See section 6.02(16). Yes No N/A Page____ 25. If you are requesting separate letter rulings on different issues involving one factual situation, have you included a statement to that effect in each request? See section 6.03(1). Yes No N/A Page____ 26. If you have more than one representative, have you designated whether the representatives listed on the power of attorney (Form 2848) are to receive a copy of the letter ruling? See section 6.03(2). Yes No N/A27. If you want your letter ruling request to be processed ahead of the regular order or by a specific date, have you requested expedited handling in the form required by section 6.03(3) and stated a compelling need for such action in the request? Yes No N/A Page____ 28. If you want to have a conference on the issues involved in the request, have you included a request for a conference in the ruling request? See section 6.03(5). Yes No N/A29. If your request is covered by any of the revenue procedures listed in section 26, have you complied with all of the requirements of the applicable revenue procedures? Yes No N/A30. Have you addressed your request to the appropriate office provided in section 31? Improperly addressed requests may be delayed (sometimes for over a week) in reaching the appropriate office for initial processing. _______________________ __________________ _________________ Signature Title or authority Date _________________________________________________ Typed or printed name of person signing checklist Bulletin No. 2023–1 263 January 3, 2023 APPENDIX F ADDITIONAL CHECKLIST FOR ROTH IRA RECHARACTERIZATION RULING REQUESTS Note: A conversion of a traditional IRA to a Roth IRA, and a rollover from any other eligible retirement plan to a Roth IRA, made in tax years after December 31, 2017, cannot be re-characterized as having been made to a traditional IRA. In order to assist Employee Plans in processing a ruling request involving a Roth IRA recharacterization, in addition to the items in Appendix E, please check the following list. Answer each question by circling “Yes,” “No,” or “N/A.” If a question contains a place for a page number, insert the page number (or numbers) of the request that gives the information called for by a yes answer to a question. Yes No N/A Page __ 1. Did you include the name(s) of the trustee and/or custodian of the traditional individual retirement account (IRA) (generally, a financial institution)? Yes No N/A Page __ 2. Is each IRA identification number included? Yes No N/A Page __ 3. If the ruling request involves Roth conversions of a married couple, is the necessary information with respect to each IRA of each party included? Note: as long as the parties file a joint federal Form 1040, the Service can issue one ruling covering both parties. Furthermore, if a joint federal income tax return has been filed for the year or years in question, the Service only requires one user fee even if each spouse had failed conversions. Yes No N/A Page __ 4. If there was one or more attempted conversions, are the applicable dates on which the attempted IRA conver- sion(s) occurred included? Yes No N/A Page __ 5. If the reason that a conversion failed is that the taxpayer or related taxpayers relied upon advice of a tax profes- sional such as a CPA, or an attorney, is the name and occupation of that adviser included? Yes No N/A Page __ 6. Is certification that the taxpayer or taxpayers timely filed the relevant federal tax return(s) included? Yes No N/A Page __ 7. Is there a short statement of facts with respect to the conversion? Yes No N/A Page __ 8. If the taxpayer recharacterized his/her Roth IRA to a traditional IRA prior to submitting a request for § 9100 relief, are the date(s) of the recharacterization(s), name(s) of trustees and/or custodians, and the identification num- bers of the traditional IRA(s) included? Yes No N/A Page __ 9. Does the request include the type of contribution (i.e., regular or conversion) and amount of the contribution being recharacterized? January 3, 2023 264 Bulletin No. 2023–1 APPENDIX G ADDITIONAL CHECKLIST FOR NONBANK TRUSTEE APPLICATIONS In order to assist Employee Plans Rulings and Agreements in considering an application for nonbank trustee approval, please use this checklist, in addition to the checklist in Appendix E, and submit it with your request. Please respond with Yes, No, or N/A. 1. Did you specify the types of accounts you want to handle (e.g., IRAs, Roth IRAs, 403(b)(7) custodial accounts)? 2. Did you specify whether you want to handle accounts passively and/or non-passively? 3. Did you identify the percentage ownership of individuals of the applicant, taking into account the rules for constructive ownership provided in IRC 1563(e) and (f)(2)? Did you describe in detail the intermediate and ultimate ownership of the applicant or provide an organizational chart illustrating such ownership? 4. If you do not satisfy any of the safe harbors in Treas. Reg. § 1.408-2(e)(2)(i), did you discuss factors relating to satisfying the continuity requirement such as concentration of ownership, number of employees, number of physical locations, non-owner management, and overall financial condition? 5. Did you provide a copy of your audited financial statements that show net worth as determined at the end of the most recent taxable year? 6. Does your submission include draft Rules of Fiduciary Conduct? 7. Do the draft Rules of Fiduciary Conduct contain each item (if applicable) in Treas. Reg. § 1.408-2(e)(5)? 8. Did you provide a complete copy of the applicant’s current bond with riders? 9. Did you discuss each requirement in Treas. Reg. § 1.408-2(e)(2) through § 1.408-2(e)(5)? 10. Did you provide documentation to substantiate compliance with each requirement (if applicable)? 11. Did you provide a representation that, if approved, the applicant will act as a trustee only if the written custodial agreement or trust instrument provides for the substitution of a custodian or trustee? Bulletin No. 2023–1 265 January 3, 2023 26 CFR 601.201: Rulings and determination letters. Rev. Proc. 2023-5 TABLE OF CONTENTS SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? ...................................267 Description of terms used in this revenue procedure ........................................................267 Updated annually ....................................................................................268 SECTION 2. NATURE OF CHANGES TO REV. PROC. 2022-5 AND RELATED REVENUE PROCEDURES AND FORMS ...............................................................................268 What changes have been made to Rev. Proc. 2022-5? .......................................................268 Related revenue procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269 Related forms that are not a request for a determination letter .................................................269 SECTION 3. UNDER WHAT CIRCUMSTANCES DOES EO DETERMINATIONS ISSUE DETERMINATION LETTERS? .................................................................................270 Matters on which EO Determinations will issue a determination letter ..........................................270 Circumstances under which determination letters are not issued ...............................................271 Technical advice may be requested in certain cases .........................................................273 Review of determination letters ........................................................................273 Determination letter based solely on administrative record ...................................................273 SECTION 4. WHAT ARE THE GENERAL INSTRUCTIONS FOR REQUESTING DETERMINATION LETTERS? ..273 In general ..........................................................................................274 Format of request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Form 1023 application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Form 1023-EZ application ............................................................................274 Form 1024 application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Form 1024-A application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Form 1028 application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275 Form 8940 request for miscellaneous determination ........................................................275 Letter request .......................................................................................275 Language requirements ...............................................................................275 Signature on request .................................................................................275 Power of attorney and declaration of representative .........................................................276 Penalty of perjury statement ...........................................................................276 Applicable user fee ..................................................................................277 Where will copies of the determination letter be sent? .......................................................277 Expedited processing .................................................................................277 Non-acceptance for processing .........................................................................278 How to check on status of request .......................................................................278 SECTION 5. WHAT ARE THE SPECIFIC PROCEDURES FOR REQUESTING A DETERMINATION LETTER BY LETTER? ......................................................................279 In general ..........................................................................................279 Certain information required ...........................................................................279 Statement of facts ...................................................................................279 Documents .........................................................................................279 Analysis of material facts .............................................................................279 Same or similar issue previously submitted or currently pending ..............................................279 Statement of authorities ...............................................................................280 January 3, 2023 266 Bulletin No. 2023–1 SECTION 6. WHAT ARE THE SPECIFIC PROCEDURES FOR APPLICATIONS FOR RECOGNITION OF EXEMPTION UNDER §§ 501 or 521? ..........................................................280 In general ..........................................................................................281 Terrorist organizations not eligible to apply for recognition of exemption ........................................281 Format of application ................................................................................281 User fees ..........................................................................................281 Form 1023-EZ applications ............................................................................281 Form 1023 and Form 1023-EZ applications for reinstatement after automatic revocation ...........................283 What are the requirements for a completed application? .....................................................283 Requirements for a completed application other than a Form 1023-EZ application ................................283 Requirements for a completed Form 1023-EZ application ....................................................284 What are the standards for issuing a determination letter on tax-exempt status? ...................................285 Tax-exempt status must be established in application, including attestation and supporting documents .................285 Tax-exempt status may be recognized in advance of actual operations ..........................................285 Even if application is complete, additional information may be required ........................................285 Effective date of tax-exempt status ......................................................................286 SECTION 7. WHAT ARE THE SPECIFIC PROCEDURES FOR DETERMINATION LETTER REQUESTS ON FORM 8940? ...............................................................................287 In general ..........................................................................................287 Requests made on Form 8940 ..........................................................................287 Initial classification of private foundation status ............................................................287 Under what circumstances must an organization request a determination of foundation status, and when is such a request optional? ..............................................................................287 Not applicable to notices submitted by private foundations regarding terminations under § 507 or changes of status pursuant to examination .........................................................................288 SECTION 8. WITHDRAWAL OF A REQUEST FOR DETERMINATION LETTER ...............................288 Request may be withdrawn prior to issuance of a determination letter ..........................................288 Section 7428 implications of withdrawal of application under § 501(c) or (d) ....................................288 SECTION 9. PROCEDURES FOR ADVERSE DETERMINATION LETTERS ...................................289 In general ..........................................................................................289 Types of requests that may receive Independent Office of Appeals consideration ..................................289 Contents of proposed adverse determination letter for requests with appeals rights ................................289 Protest/appeal of a proposed adverse determination letter on certain issues ......................................289 Final adverse determination letter where no protest/appeal is submitted .........................................289 Review of protest by EO Determinations .................................................................290 Consideration by the Independent Office of Appeals ........................................................290 Effect of new information raised in protest/appeal ..........................................................290 An appeal or protest may be withdrawn ..................................................................290 Appeal and conference rights not applicable in certain situations ..............................................290 Adverse determination letter on an issue that will not receive consideration by the Independent Office of Appeals .......290 Possible future updates related to review by the Independent Office of Appeals ...................................291 SECTION 10. DECLARATORY JUDGMENT PROVISIONS OF § 7428 .........................................291 Actual controversy involving certain issues ...............................................................291 Final determination to which § 7428 applies ..............................................................291 Failure to make a determination to which § 7428 applies .....................................................291 Section 7428 does not apply to the non-acceptance or withdrawal of a request ....................................292 Exhaustion of administrative remedies ...................................................................292 Not earlier than 270 days after seeking determination .......................................................292 Service must have reasonable time to act on an appeal or protest ..............................................293 SECTION 11. FAVORABLE DETERMINATION LETTERS ..................................................293 Reliance on determination letter ........................................................................293 Limitations on reliance ...............................................................................293 Post-determination review .............................................................................293 Bulletin No. 2023–1 267 January 3, 2023 SECTION 12. REVOCATION OR MODIFICATION OF A DETERMINATION LETTER .........................294 Appeal and conference procedures in the case of revocation or modification of tax-exempt status letter ................294 Revocation or modification of a determination letter may be retroactive .........................................294 Organization may request that retroactivity be limited under § 7805(b) .........................................295 Effective date of revocation or modification of a determination letter on tax-exempt status ..........................295 SECTION 13. DISCLOSURE OF APPLICATIONS AND DETERMINATION LETTERS INCLUDING THAT OF FOUNDATION STATUS .................................................................296 Determination letter will be disclosed under §§ 6104 or 6110 depending on the type of request and the type of determination letter issued. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .296 Disclosure of applications, supporting documents, and favorable determination letters under § 6104 ..................296 Disclosure of determination letters under § 6110 ...........................................................297 Taxpayer may protest disclosure under § 6110 of certain information in a determination letter .......................297 Taxpayer may request delay of public inspection under § 6110 ................................................297 Disclosure to state officials when the Service refuses to recognize tax-exempt status under § 501(c)(3) ................297 Disclosure to state officials of information about § 501(c)(3) applicants .........................................298 SECTION 14. WHAT ARE THE USER FEE REQUIREMENTS FOR DETERMINATION LETTERS? ..............298 Legislation authorizing user fees ........................................................................298 Requests to which user fees apply .......................................................................298 Requests and other actions to which user fees do not apply ...................................................298 Exemption from the user fee requirements ................................................................298 Requests involving multiple fee categories, issues, or entities .................................................298 Method of payment ..................................................................................299 Transmittal forms ...................................................................................299 Effect of nonpayment or payment of incorrect amount .......................................................299 Refunds of user fees .................................................................................300 Request for reconsideration of user fee ...................................................................300 SECTION 15. MAILING ADDRESS FOR REQUESTING DETERMINATION LETTERS .........................300 SECTION 16. EFFECT OF THIS REVENUE PROCEDURE ON OTHER DOCUMENTS ..........................301 SECTION 17. EFFECTIVE DATE .........................................................................301 SECTION 18. PAPERWORK REDUCTION ACT ............................................................302 DRAFTING INFORMATION .............................................................................302 APPENDIX A ..........................................................................................303 APPENDIX B ..........................................................................................304 This revenue procedure sets forth procedures for issuing determination letters on issues under the jurisdiction of the Director, Exempt Organizations (EO) Rulings and Agreements. Specifically, it explains the procedures for issuing determination letters on tax-exempt status (in response to applications for recognition of exemption from Federal income tax under §§ 501 or 521 other than those subject to Rev. Proc. 2023-4, this Bulletin (relating to pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans)), private foundation status, and other determinations related to tax-exempt organizations. These procedures also apply to revocation or modification of determination letters. This revenue procedure also provides guidance on the exhaustion of administrative remedies for purposes of declaratory judgment under § 7428. Finally, this revenue procedure provides guidance on applicable user fees for requesting determination letters. .01 For purposes of this revenue procedure— SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? Description of terms used in this revenue procedure January 3, 2023 268 Bulletin No. 2023–1 (1) The term “Service” means the Internal Revenue Service. (2) The term “EO Rulings and Agreements” means the office in Exempt Organizations & Government Entities that is primarily responsible for up-front, customer-initiated activities such as determination letter requests, taxpayer assistance, and assistance to other Exempt Organizations & Government Entities offices. The EO Rulings and Agreements office includes the offices of EO Determinations and EO Determinations Quality Assurance. (3) The term “EO Determinations” means the office in EO Rulings and Agreements of the Service that is primarily responsible for processing requests for determination letters. (4) The term “Independent Office of Appeals” (Internal Revenue Service Independent Office of Appeals) means any office under the direction and control of the Chief of Appeals. The purpose of the Independent Office of Appeals is to resolve tax controversies, without litigation, on a fair and impartial basis. The Independent Office of Appeals is independent of EO Rulings and Agreements. (5) The term “determination letter” means a written statement issued by EO Determinations or the Independent Office of Appeals in response to a request for the Service’s ruling on a question of tax-exempt status, foundation status, or other determination under the jurisdiction of the Director, EO Rulings and Agreements. This includes a written statement issued by EO Determinations or an office of the Independent Office of Appeals on the basis of advice secured from the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) pursuant to the procedures prescribed in Rev. Proc. 2023-2, this Bulletin. A determination letter applies the principles and precedents previously announced to a specific set of facts. (6) The term “request” means the written submission that an organization uses to obtain a determination letter in accordance with the requirements of this revenue procedure. (7) The term “application” means a request for recognition of exemption from Federal income tax under §§ 501 or 521. .02 This revenue procedure is updated annually but may be modified or amplified during the year. Updated annually SECTION 2. NA TURE OF CHANGES TO REV. PROC. 2022-5 AND RELATED REVENUE PROCEDURES AND FORMS What changes have been made to Rev. Proc. 2022-5? .01 This revenue procedure updates Rev. Proc. 2022-5, 2022-1 IRB 256, which deals with procedures for issuing Exempt Organization determination letters. Notable changes to Rev. Proc. 2022-5 that appear in this year’s update include— (1) Edits were made throughout to reflect Rev. Proc. 2022-8, 2022-4 IRB 455 (2022), which provided information and procedures on the electronic Form 1024, Application for Recognition of Exemption Under Section 501(a) or Section 521 of the Internal Revenue Code. (2) Section 9.02 of this revenue procedure includes a change made by the Independent Office of Appeals to acknowledge there is now an opportunity to protest/appeal a proposed adverse Bulletin No. 2023–1 269 January 3, 2023 determination letter on classification or reclassification of a § 4947(a)(1) non-exempt charitable trust as described in § 509(a)(3). (3) Section 13.02 of this revenue procedure was updated to note that favorable determination letters issued in 2014 and later are available on Tax Exempt Organization Search at www.irs.gov/ teos and explain that requests for applications and determination letters of exempt organizations can be made by submitting Form 4506-B, Request for a Copy of Exempt Organization IRS Application or Letter. Previously, requests for these materials were made by submitting Form 4506-A, Request for a Copy of Exempt or Political Organization IRS Form. See the instructions for Form 4506-A for information on how to obtain copies of annual information returns. (4) Section 16 of this revenue procedure was updated to explain that this revenue procedure supersedes Rev. Proc. 2022-8. (5) Editorial changes were made throughout including minor non-substantive changes, dates, and cross-references. Citations to other revenue procedures were changed to reflect the appropriate annual revenue procedures. Related revenue procedures .02 This revenue procedure supplements the following revenue procedures— (1) Rev. Proc. 80-27, 1980-1 CB 677, which sets forth procedures under which tax-exempt status may be recognized on a group basis for subordinate organizations affiliated with and under the general supervision and control of a central organization. (2) Rev. Proc. 72-5, 1972-1 CB 709, which provides information for religious and apostolic organizations seeking recognition of exemption under § 501(d). (3) Rev. Proc. 2015-17, 2015-7 IRB 599, which provides information regarding procedures for organizations described in § 501(c)(29). (4) Rev. Proc. 2014-11, 2014-3 IRB 411, which sets forth procedures for reinstating the tax- exempt status of organizations that have had their tax-exempt status automatically revoked under § 6033(j)(1). (5) Rev. Proc. 2016-41, 2016-30 IRB 165, which sets forth the procedure for an organization to notify the Service, consistent with § 506, that it is operating as an organization described in § 501(c)(4). (6) Rev. Proc. 2018-15, 2018-9 IRB 379, which describes the circumstances under which a domestic § 501(c) organization that changes its form or place of organization will not be required to file a new exemption application and such an organization’s reporting requirements. Related forms that are not a .03 Forms that are not requests for a determination. Certain organizations are required to request for a determination submit the following forms, but such forms are not requests for a determination and, thus, are not letter subject to the procedures in this revenue procedure. (1) Form 3115, Application for Change in Accounting Method. A tax-exempt organization described in § 501(c) that wants to change its method of accounting for computing taxable income must follow the procedures that are generally applicable to all taxpayers for requesting January 3, 2023 270 Bulletin No. 2023–1 the Commissioner’s consent to an accounting method change, including, if applicable, filing a Form 3115, Application for Change in Accounting Method (see, e.g., Rev . Proc. 2015-13, 2015-5 IRB 419, as modified and clarified by Rev. Proc. 2021-34, 2021-35 IRB 337 (or any successor)). A tax-exempt organization described in § 501(c) must request consent to change its method of accounting for computing taxable income only if the tax-exempt organization has previously adopted a method of accounting for computing taxable income for the item(s) being changed. A taxpayer generally adopts a method of accounting in the first year in which an item is taken into account in computing taxable income. Thus, a tax-exempt organization that has adopted a method of accounting for an item of income or expense from an unrelated trade or business must generally request consent in order to change its method of accounting for reporting the item in any subsequent year, regardless of whether the gross income from the unrelated trade or business is greater than or equal to $1,000 in such subsequent year. However, a tax-exempt organization that has not yet adopted a method of accounting for an item does not have to request consent to change the methodology of reporting the item. Thus, a tax-exempt organization that is required to file a Form 990-T, Exempt Organization Business Income Tax Return (and proxy tax under section 6033(e)) solely due to owing a § 6033(e)(2) proxy tax but has not yet adopted a method of accounting for an item of income or expense does not have to request consent to change its methodology for reporting such item on its Form 990-T (or Form 990, as applicable). See Rev . Proc. 2015-13, as modified and clarified by Rev. Proc. 2021-34, and Section 9 of Rev. Proc. 2023- 1, this Bulletin for procedures applicable to taxpayers, including tax-exempt organizations, for requesting changes in method of accounting. (2) Form 8871, Political Organization Notice of Section 527 Status. A political party, a campaign committee for a candidate for Federal, state, or local office, and a political action committee are all political organizations subject to tax under § 527. To be tax-exempt, a political organization may be required to notify the Service that it is to be treated as a § 527 organization by electronically filing Form 8871, Political Organization Notice of Section 527 Status. See www. irs.gov (“Tax Information for Political Organizations”). (3) Form 8976, Notice of Intent to Operate Under Section 501(c)(4). An or ganization described in § 501(c)(4) must, no later than 60 days after the date the organization is established, notify the Service that it is operating as an organization described in § 501(c)(4) by submitting a completed Form 8976, Notice of Intent to Operate Under Section 501(c)(4) and the accompanying user fee. See www.irs.gov (“Electronically Submit Your Form 8976, Notice of Intent to Operate Under Section 501(c)(4)”). SECTION 3. UNDER WHAT CIRCUMSTANCES DOES EO DETERMINATIONS ISSUE DETERMINATION LETTERS? Matters on which EO Determinations will issue a determination letter .01 EO Determinations issues determination letters on the following matters— (1) Initial qualification for tax-exempt status of organizations described in §§ 501 or 521 (including reinstatement of organizations that have been automatically revoked pursuant to § 6033(j) and subordinate organizations included in a group exemption letter that have been revoked pursuant to that provision). See Rev . Proc. 2018-15 for procedures applicable to an entity changing its form or state of organization; (2) Updated tax-exempt status letter (affirmation letter) to reflect changes to an organization’s name or address, or to replace a lost tax-exempt status letter; Bulletin No. 2023–1 271 January 3, 2023 (3) Classification or reclassification of private foundation status, including whether an organization is— (a) A private foundation; (b) A public charity described in §§ 509(a)(1) and 170(b)(1)(A) (other than clauses (v), (vii), and (viii)); (c) A public charity described in § 509(a)(2) or (4); (d) A public charity described in § 509(a)(3), whether such organization is described in § 509(a) (3)(B)(i), (ii), or (iii) (supporting organization type), and whether or not a Type III supporting organization is functionally integrated; (e) A private operating foundation described in § 4942(j)(3); or (f) An exempt operating foundation described in § 4940(d)(2). (4) Recognition of unusual grants to certain organizations under §§ 170(b)(1)(A)(vi) and 509(a) (2); (5) Requests for relief under Treas. Reg. § 301.9100-1 in connection with applications for recognition of exemption; (6) T erminations of private foundation status under § 507(b)(1)(B); (7) Advance approval of certain set-asides described in § 4942(g)(2); (8) Advance approval under § 4945(g) of organizations’ grant making procedures; (9) Advance approval of voter registration activities described in § 4945(f); (10) Whether an organization is exempt from filing annual information returns under § 6033, as provided in Treas. Reg. § 1.6033-2(g)(1), Rev. Proc. 95-48, 1995-2 CB 418, and Rev. Proc. 96-10, 1996-1 CB 577; (11) Determination of foundation status under § 509(a)(3) of non-exempt charitable trusts described in § 4947(a)(1); and (12) Government entity voluntary termination of § 501(c)(3) recognition (must include documentation that the organization is not subject to income tax, other than under § 501(a)). Circumstances under which determination letters are not issued .02 The Service may decline to issue a determination letter when appropriate in the interest of sound tax administration or on other grounds whenever warranted by the facts or circumstances of a particular case. In addition, the Service will not issue a determination letter in response to any request if— January 3, 2023 272 Bulletin No. 2023–1 (1) the request involves an issue under the jurisdiction of the Office of Associate Chief Counsel described in Rev. Proc. 2023-1; (2) the same issue involving the same taxpayer, or a related taxpayer, is pending in a case in litigation or before the Independent Office of Appeals. If the issue in litigation involving the same taxpayer or a related taxpayer is not the taxpayer or a related taxpayer’s qualification as a tax-exempt entity (such as a declaratory judgment action under § 7428), the Service may issue a determination letter on tax-exempt status after consultation with counsel; (3) the determination letter is requested by an industry, trade association, or similar group on behalf of individual taxpayers within the group (other than subordinate organizations covered by a group exemption letter); (4) the determination letter is requested by an organization seeking to qualify under § 501(c)(5) the purpose of which is directed to the betterment of conditions of those engaged in the pursuits of labor, agriculture, or horticulture, the improvement of the grade of their products, and the development of a higher degree of efficiency in their respective occupations relating to an activity involving controlled substances (within the meaning of schedule I and II of the Controlled Substances Act, 21 USC § 801 et seq.) that is prohibited by Federal law regardless of its legality under the law of the state in which such activity is conducted; (5) the determination letter is requested by an organization seeking to qualify under § 501(c)(6) the purpose of which is directed to the improvement of business conditions of one or more lines of business relating to an activity involving controlled substances (within the meaning of schedule I and II of the Controlled Substances Act, 21 USC § 801 et seq.) that is prohibited by Federal law regardless of its legality under the law of the state in which such activity is conducted; (6) the request is based on alternative plans of proposed transactions or on hypothetical situations. An application based on proposed activities that satisfies section 6.07(2) of this revenue procedure (related to recognizing tax-exempt status in advance of actual operations) is not considered to be based on hypothetical situations; (7) an organization currently recognized as exempt under § 501(c) of the Code seeks a new determination letter confirming that the organization is still recognized under the same Code section under the current facts; (8) an organization seeks a determination of foundation status that is identical to its current foundation status as determined by EO Determinations. For example, an organization that is already recognized as described in §§ 509(a)(1) and 170(b)(1)(A)(ii) as a school generally will not receive a new determination letter that it is still described in §§ 509(a)(1) and 170(b)(1)(A)(ii) under the current facts; (9) an organization currently recognized as described in § 501(c)(3) seeks a determination letter recognizing the organization as described in a different subsection of § 501(c); (10) an organization currently recognized as exempt under § 501(c) (other than a government entity as specified in section 3.01(12) of this revenue procedure) requests a determination to relinquish its tax-exempt status under § 501(a); Bulletin No. 2023–1 273 January 3, 2023 (11) a domestic organization currently recognized as exempt under § 501(c) seeks a determination letter but is not required to reapply because it has changed its form or state of organization in accordance with the requirements in Rev. Proc. 2018-15. An organization may request an affirmation letter to reflect changes to its name or address as provided in section 3.01(2) of this revenue procedure; or (12) an organization applies for a group exemption letter. Notice 2020-36, 2020-21 IRB 840, provides that the Service will not accept any requests for group exemption letters until publication of the final revenue procedure described in the Notice or other guidance in the Internal Revenue Bulletin. Note: In some circumstances, an organization may seek a letter ruling from the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) on a specific legal issue, including whether an activity furthers an organization’s exempt purpose. See Rev. Proc. 2023-1 and Rev. Proc. 2023-3, this Bulletin. Technical advice may be requested in certain cases .03 EO Determinations generally issues determination letters only if the question presented is answered by a statute, tax treaty, regulation, court opinion, or guidance published in the Internal Revenue Bulletin. At any time during the course of consideration by EO Determinations, if either EO Determinations or the organization believes that its case involves an issue on which there is no published precedent, or there has been non-uniformity in the Service’s handling of similar cases, EO Determinations may decide to seek, or the organization may request that EO Determinations seek, technical advice from the Office of Associate Chief Counsel with subject matter jurisdiction over the issue. See Rev. Proc. 2023-2. Review of determination letters .04 Determination letters issued under this revenue procedure are not generally reviewed by any other office outside of EO Rulings and Agreements before they are issued. For post-determination review of determination letters by EO Determinations Quality Assurance, see section 11.03 of this revenue procedure. Determination letter based solely on administrative record .05 A determination letter is issued based solely upon the facts, attestations, and representations contained in the administrative record. (1) The taxpayer is responsible for the accuracy of any factual representations or attestations contained in the request. (2) Any oral representation of additional facts, or modification of facts, as represented or alleged in the request, must be reduced to writing and signed by the taxpayer under a penalty of perjury statement, in accordance with section 4.06 of this revenue procedure. (3) The failure to disclose a material fact or misrepresentation of a material fact on the request, which includes an incorrect representation or attestation, may adversely affect the reliance that the organization submitting the request would otherwise obtain through issuance by the Service of a favorable determination letter. See section 11.02 of this revenue procedure for additional information. SECTION 4. WHAT ARE THE GENERAL INSTRUCTIONS FOR REQUESTING DETERMINATION LETTERS? January 3, 2023 274 Bulletin No. 2023–1 In general .01 This section explains the general instructions for requesting determination letters. In addition to these general instructions, specific procedures apply to requests submitted by letter (as described in section 5 of this revenue procedure) and to requests for determinations submitted on Form 8940, Request for Miscellaneous Determination (as described in section 7 of this revenue procedure). Format of request .02 Which form, if any, should be used for the request? Some requests are made by letter and some requests are made by submitting a specific form. Form 1023 application (1) Form 1023 application. An organization seeking recognition of exemption under § 501(c) (3) (including an organization to which § 501(e), (f), (k), (n), (q), or (r) is applicable) must electronically submit a completed Form 1023 at www.pay.gov. In the case of an organization that provides credit counseling services, see § 501(q). In the case of an organization that is a hospital and is seeking tax-exempt status under § 501(c)(3), see § 501(r). Notwithstanding the foregoing, eligible organizations may seek recognition of exemption under § 501(c)(3) by submitting a completed Form 1023-EZ, as described in section 6.06(2) of this revenue procedure, rather than by submitting Form 1023. For additional information about the electronic submission process, refer to Form 1023 and its Instructions. Form 1023-EZ application (2) Form 1023-EZ application . An eligible organization, as described in section 6.05 of this revenue procedure, may, but is not required to, seek recognition of exemption under § 501(c)(3) by submitting a completed electronic Form 1023-EZ. Alternatively, an eligible organization may seek tax-exempt status under § 501(c)(3) by submitting a completed Form 1023, as described in section 6.06(1) of this revenue procedure. For additional information about the electronic submission process, refer to Form 1023-EZ and its instructions. Form 1024 application (3) Form 1024 application. An organization seeking a determination letter from the Service recognizing tax-exempt status under § 501(c)(2), (5)-(19), (21)-(23), (25)-(29), or (d) must electronically submit a completed Form 1024, Application for Recognition of Exemption Under Section 501(a) or Section 521. An organization seeking a determination letter from the Service recognizing tax-exempt status under § 521 may also electronically submit Form 1024. Organizations that seek to operate under § 501(c)(9) or (17) must apply for recognition of exemption. See § 505. Other organizations may choose to seek a determination letter recognizing tax-exempt status under § 501 by filing Form 1024, but are not required to do so except in certain cases (see, for example, § 6033(j)(2) regarding failures to file annual information returns or annual electronic notifications required under § 6033(a) or (i)). Form 1024-A application (4) Form 1024-A application. An organization seeking a determination letter from the Service recognizing tax-exempt status under § 501(c)(4) must electronically submit a completed Form 1024-A and the accompanying user fee at www.pay.gov. In the case of an organization that provides credit counseling services and seeks recognition of exemption under § 501(c)(4), see § 501(q). Bulletin No. 2023–1 275 January 3, 2023 Section 501(c)(4) organizations may choose to seek a determination letter recognizing tax- exempt status under § 501(c)(4) by filing Form 1024-A, but are not required to do so except in certain cases (see, for example, § 6033(j)(2) regarding failures to file annual information returns or annual electronic notifications required under § 6033(a) or (i)). Submission of Form 1024-A does not relieve an organization of the requirement to submit Form 8976, Notice of Intent to Operate Under Section 501(c)(4). For additional information about the electronic submission process, refer to Form 1024-A and its Instructions. Form 1028 application (5) Form 1028 application. An organization seeking recognition of exemption under § 521 may submit a completed Form 1028, Application for Recognition of Exemption Under Section 521 of the Internal Revenue Code, along with Form 8718. Note that an organization seeking a determination letter from the Service recognizing tax-exempt status under § 521 may instead electronically submit the revised Form 1024. Form 8940 request for miscellaneous determination (6) Form 8940 request for miscellaneous determination. The Form 8940, Request for Miscellaneous Determination, is used for the following determination letter requests— (a) Advance approval of certain set-asides described in § 4942(g)(2); (b) Advance approval of voter registration activities described in § 4945(f); (c) Advance approval of scholarship procedures described in § 4945(g); (d) Exemption from Form 990 filing requirements; (e) Advance approval that a potential grant or contribution constitutes an unusual grant; (f) Change in Type (or initial determination of Type) of a § 509(a)(3) organization; (g) Reclassification of foundation status, including a voluntary request from a public charity for private foundation status; (h) Termination of private foundation status under § 507(b)(1)(B)—advance ruling request; and (i) Termination of private foundation status under § 507(b)(1)(B)—60-month period ended. Letter request (7) Letter request. (a) Letter applications. A central organization that has previously received or is concurrently requesting recognition of its own tax-exempt status can request a group exemption letter by submitting a letter application along with Form 8718. But see, section 3.02(12) of this revenue procedure. (b) Other letter requests. Any determination letter request which is not required to be submitted on a form may be submitted by letter. Language requirements .03 All requests must be submitted in English. All documents submitted in support of such requests must be in English or accompanied by an accurate and complete English translation. Signature on request .04 Signature on request. The request for determination letter must be signed and dated by the taxpayer or, when applicable, the taxpayer’s authorized representative. Neither a stamped January 3, 2023 276 Bulletin No. 2023–1 signature nor a faxed signature is permitted. However, a faxed signature is permitted if requested by the Service in the case of an organization replacing its initial request with a request for a determination under a different subsection of § 501(c) during processing of an initial request, or as otherwise requested during the processing of an initial request. (1) Individual authorized to sign Form 1023, Form 1023-EZ, Form 1024, Form 1024-A or Form 8940 on behalf of an organization. In the case of a request for a determination letter made by filing Form 1023, Form 1023-EZ, Form 1024, Form 1024-A or Form 8940, an officer, director, trustee, or other official who is authorized to sign for the organization must sign the applicable form. The signature of a representative authorized by a power of attorney who is not an officer, director, trustee, or other official of the organization will not satisfy the signature requirement for Form 1023, Form 1023-EZ, Form 1024, Form 1024-A or Form 8940. See the instructions to the applicable form for more information on who may sign the application on behalf of an organization. (2) Authorized representatives for all other requests. Except as provided in (1) of this section 4.04, to sign the request, or to appear before the Service in connection with the request, the authorized representative must be listed in Appendix B. Power of attorney and declaration of representative .05 Power of attorney and declaration of representative. Any representative authorized by a power of attorney, whether or not licensed to practice, must comply with the conference and practice requirements of the Statement of Procedural Rules (26 CFR §§ 601.501-601.509) and Treasury Department Circular No. 230, which provide the rules for representing a taxpayer before the Service. Form 2848, Power of Attorney and Declaration of Representative must be used to provide the authorized representative’s authorization (Part I of Form 2848, Power of Attorney) and the authorized representative’s qualification (Part II of Form 2848, Declaration of Representative). The name of the individual signing Part I of Form 2848 should also be typed or printed on this form. A stamped signature is not permitted. An original, a copy, or a facsimile transmission (fax) of the power of attorney is acceptable so long as its authenticity is not reasonably disputed. Penalty of perjury statement .06 (1) Penalty of perjury statement requirements for requests for determination letters made on Form 1023, Form 1023-EZ, Form 1024, Form 1024-A, or Form 8940. The signature of an individual described in section 4.04(1) of this revenue procedure satisfies the penalty of perjury statement signature requirements for requests on Form 1023, Form 1023-EZ, Form 1024, Form 1024-A, or Form 8940, as applicable. (2) Penalty of perjury statement requirements for letter requests and responses to requests for additional information. Any letter request or information submitted at a later time (regardless of the format of the original request), must be accompanied by the following declaration— “Under penalties of perjury, I declare that I have examined this request, or this modification to the request, including accompanying documents, and, to the best of my knowledge and belief, the Bulletin No. 2023–1 277 January 3, 2023 request or the modification contains all the relevant facts relating to the request, and such facts are true, correct, and complete.” This declaration must be signed and dated by the taxpayer, not the taxpayer’s representative authorized by a power of attorney. The signature of an individual described in section 4.04(1) of this revenue procedure is the signature of the taxpayer for purposes of the penalty of perjury statement. The signature of an authorized representative described in section 4.04(2) of this revenue procedure will not satisfy the penalty of perjury statement requirements (except as otherwise provided in Appendix B). See the instructions to the relevant form for additional detail. Neither a stamped signature nor a faxed signature is permitted. However, a faxed signature is permitted if requested by the Service in the case of information submitted in response to a request by the Service for additional information after the request for a determination. The individual who signs for a corporate taxpayer must be an officer of the corporate taxpayer who has personal knowledge of the facts, and whose duties are not limited to obtaining a determination letter from the Service. The individual signing for a trust, a state law partnership, or a limited liability company must be, respectively, a trustee, general partner, or member-manager who has personal knowledge of the facts. Applicable user fee .07 Section 7528 requires taxpayers to pay user fees for requests for determination letters. See section 14 and Appendix A of this revenue procedure for more information. Where will copies of the determination letter be sent? Expedited processing .08 The original of the determination letter will be sent to the taxpayer and a copy of the determination letter will be sent to up to two authorized representatives listed on Form 2848 as appointed to receive notices and communications. .09 Requests for determination letters are normally processed in the order of receipt by the Service. However, expedited processing of a request for a determination letter may be approved where a request for expedited processing is made in writing and contains a compelling reason for processing the request for a determination letter ahead of others. Upon approval of a request for expedited processing, a request for a determination letter will be considered ahead of the normal order. This does not mean the request for a determination letter will be immediately approved or denied. (1) Procedures for requesting expedited handling. In the case of the electronically submitted Form 1023, Form 1024, or Form 1024-A, a request for expedited handling must be indicated on the form and a supporting written statement must be submitted as an attachment with the completed application. In the case of other requests for determination letters, the request for expedited handling must be made in writing, preferably in a separate letter sent with, or soon after filing, the request for the determination letter. If the request is not made in a separate letter, then the letter in which the determination letter request is made should say, at the top of the first page: “Expedited Handling Is Requested. See page ___ of this letter.” A request for expedited handling will not be forwarded to the appropriate group for action unless the application has been accepted for processing. See section 6.06(1) of this revenue procedure (requirements for a complete application). January 3, 2023 278 Bulletin No. 2023–1 Whether the request will be granted is within the Service’s discretion. Circumstances generally warranting expedited processing include— (a) a grant to the applicant is pending and the failure to secure the grant may have an adverse impact on the organization’s ability to continue to operate; (b) the purpose of the newly created organization is to provide disaster relief to victims of emergencies such as flood and hurricane; and (c) there have been undue delays in issuing a determination letter caused by a Service error. Because most requests for determination letters cannot be processed ahead of their regular order, the Service urges all taxpayers to submit their requests well in advance of the contemplated transaction. In addition, in order to facilitate prompt action on determination letter requests, taxpayers are encouraged to ensure that their initial submissions comply with all of the requirements of this revenue procedure, and to promptly provide any additional information requested by the Service. (2) Applications on Form 1023-EZ are ineligible for expedited handling . An or ganization may not request expedited handling of a Form 1023-EZ. Non-acceptance for processing .10 The Service will not accept for processing any request that is substantially incomplete. (1) Requests other than Form 1023-EZ. An application other than Form 1023-EZ that is missing any item of information listed in section 6.06(1) of this revenue procedure will be considered substantially incomplete and will not be accepted for processing. A request other than an application may be considered substantially incomplete if it does not contain the information, documentation, and other materials required by sections 4, 5, or 7 of this revenue procedure, or Form 8940 and its Instructions, as applicable to the particular request. (2) Requests on Form 1023-EZ. (a) Incomplete Form 1023-EZ. A submitted Form 1023-EZ that is not a completed Form 1023-EZ within the meaning of section 6.06(2) of this revenue procedure will not be accepted for processing by the Service. The Service may, but is not required to, request additional information to validate information presented or to clarify an inconsistency on a Form 1023-EZ. (b) Form 1023-EZ and pending application. The Service will not accept for processing a Form 1023-EZ from an organization that has an application for recognition of exemption pending with the Service. (3) Effect of non-acceptance. An organization will be notified if its request is not accepted for processing and any user fee that was paid with the request will be refunded. See section 14.09 of this revenue procedure. An organization may then submit a new request, including the missing information, with a new user fee. How to check on status of request .11 The taxpayer or the taxpayer’s authorized representative should refer to www.irs.gov (“Where’s My Exemption Application for Tax-Exempt Status?”) for guidelines on when to expect Bulletin No. 2023–1 279 January 3, 2023 to hear from the Service and may obtain information regarding the status of a request by calling the toll-free Customer Account Services number, 877–829–5500. SECTION 5. WHAT ARE THE SPECIFIC PROCEDURES FOR REQUESTING A DETERMINATION LETTER BY LETTER? In general .01 This section explains the specific procedures for requesting a determination letter by letter. Any determination letter request which is not required to be submitted on a form may be submitted by letter. For example, an organization seeking to be described in § 501(d) would submit a letter application in accordance with this section 5 and other applicable sections of this revenue procedure, and Rev. Proc. 72-5, 1972-1 CB 709. Other specific procedures may apply, depending on the type of request. See section 6 of this revenue procedure for applications for recognition of exemption under §§ 501 or 521. .02 Certain information r equired Statement of facts (1) Complete statement of facts and other information. Each request for a determination letter must contain a complete statement of all facts relating to the request. These facts include the organization’s name, address, telephone number, and Employer Identification Number (EIN). (2) Copies of all organizing documents, bylaws, contracts, wills, deeds, agreements, instruments, and other documents. All documents that are pertinent to the request (including organizing documents, bylaws, contracts, wills, deeds, agreements, instruments, trust documents, and proposed disclaimers) must be submitted with the request. Original documents should not be submitted because they become part of the Service’s file and will not be returned to the taxpayer. Instead, true copies of all such documents should be submitted with the request. Each document, other than the request, should be labeled alphabetically and attached to the request in alphabetical order. Documents Analysis of material facts (3) Analysis of material facts. All material facts in documents must be included, rather than merely incorporated by reference, in the taxpayer’s initial request or in supplemental letters. These facts must be accompanied by an analysis of their bearing on the request, specifying the provisions that apply. Same or similar issue previously submitted or currently pending (4) Statement regarding whether same or similar issue was previously ruled on or requested, or is currently pending. The request must also state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s authorized representatives— (a) the Service or the Office of Associate Chief Counsel previously ruled on the same or similar issue for the taxpayer (or a related taxpayer within the meaning of § 267, or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504) or a predecessor; January 3, 2023 280 Bulletin No. 2023–1 (b) the taxpayer, a related taxpayer, a predecessor, or any authorized representatives previously submitted the same or similar issue to the Service or the Office of Associate Chief Counsel but withdrew the request before a letter ruling or determination letter was issued; (c) the taxpayer, a related taxpayer, or a predecessor previously submitted a request involving the same or a similar issue that is currently pending with the Service or the Office of Associate Chief Counsel; or (d) at the same time as this request, the taxpayer or a related taxpayer is presently submitting another request involving the same or a similar issue to the Service or the Office of Associate Chief Counsel. If the statement is affirmative for (a), (b), (c), or (d) of this section 5.02(4), the statement must give the date the request was submitted, the date the request was withdrawn or ruled on, if applicable, and other details of the Service’s or Office of Associate Chief Counsel’s consideration of the issue. Statement of authorities (5) The request must include a statement of whether the law in connection with the request is uncertain and whether the issue is adequately addressed by relevant authorities. (a) Statement of supporting authorities. If the taxpayer advocates a particular conclusion, an explanation of the grounds for that conclusion and the relevant authorities to support it must also be included. Even if not advocating a particular tax treatment of a proposed transaction, the taxpayer must still furnish views on the tax results of the proposed transaction and a statement of relevant authorities to support those views. (b) Statement of contrary authorities. The taxpayer is also encouraged to inform the Service about, and discuss the implications of, any authority believed to be contrary to the position advanced, such as legislation (or pending legislation), tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, or announcements. If the taxpayer determines that there are no contrary authorities, a statement in the request to this effect would be helpful. If the taxpayer does not furnish either contrary authorities or a statement that none exists, the Service in complex cases or those presenting difficult or novel issues may request submission of contrary authorities or a statement that none exists. Failure to comply with this request may result in the Service’s refusal to issue a determination letter. Identifying and discussing contrary authorities will generally enable Service personnel to understand the issue and relevant authorities more quickly. When Service personnel receive the request, they will have before them the taxpayer’s thinking on the effect and applicability of contrary authorities. This information should make research easier and lead to earlier action by the Service. If the taxpayer does not disclose and distinguish significant contrary authorities, the Service may need to request additional information, which will delay action on the request. SECTION 6. WHAT ARE THE SPECIFIC PROCEDURES FOR APPLICATIONS FOR RECOGNITION OF EXEMPTION UNDER §§ 501 OR 521? Bulletin No. 2023–1 281 January 3, 2023 In general .01 This section sets forth procedures for applying for and issuing determination letters in response to applications for recognition of exemption under §§ 501 or 521, other than those subject to Rev . Proc. 2023-4 (relating to pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans). Terrorist organizations not eligible to apply for recognition of exemption Format of application .02 An organization that is identified or designated as a terrorist organization within the meaning of § 501(p)(2) is not eligible to apply for recognition of exemption. .03 An organization seeking recognition of exemption under §§ 501 or 521 is required to submit the appropriate completed application form or the appropriate completed letter request. In the case of a numbered application form, the current version of the form must be submitted. The current version of the form can be found on www.irs.gov (“Forms & Instructions”). User fees .04 An organization applying for recognition of exemption must pay the user fee with its Form 1023, Form 1023-EZ, Form 1024, or Form 1024-A through www.pay.gov when submitting its form. For other applications for recognition of exemption, an organization must attach a completed Form 8718, User Fee for Exempt Organization Determination Letter Request, to its application. Form 1023-EZ applications .05 (1) Eligibility for Form 1023-EZ application. An organization that is an eligible organization may use Form 1023-EZ to apply for recognition of exemption under § 501(c)(3), unless the organization is designated in section 6.05(2) of this revenue procedure as an organization that is ineligible to submit Form 1023-EZ. An organization is an eligible organization if the organization satisfies all of the following criteria— (a) The organization has projected annual gross receipts of $50,000 or less in the current taxable year and the next two years; (b) The organization had annual gross receipts of $50,000 or less in each of the past three years for which the organization was in existence; and (c) The organization has total assets the fair market value of which does not exceed $250,000. For purposes of this eligibility requirement, a good faith estimate of the fair market value of the organization’s assets is sufficient. (2) Ineligibility for Form 1023-EZ application. The following organizations are not eligible to submit Form 1023-EZ and must use Form 1023 to apply for recognition of exemption under § 501(c)(3) — (a) Organizations formed under the laws of a foreign country (United States territories and possessions are not considered foreign countries); (b) Organizations that do not have a mailing address in the United States (territories and possessions are considered the United States for this purpose); (c) Organizations that are successors to, or controlled by, an entity suspended under § 501(p) (suspension of tax-exempt status of terrorist organizations); January 3, 2023 282 Bulletin No. 2023–1 (d) Organizations that are not corporations, unincorporated associations, or trusts, such as a limited liability corporation (LLC); (e) Organizations that are formed as for-profit entities or are successors to for-profit entities; (f) Organizations whose tax-exempt status were previously revoked or that are successors to an organization whose tax-exempt status was previous revoked (other than an organization the tax- exempt status of which was automatically revoked for failure to file a Form 990 series return or notice for three consecutive years under § 6033(j)); (g) Churches or conventions or associations of churches described in § 170(b)(1)(A)(i); (h) Schools, colleges, or universities described in § 170(b)(1)(A)(ii); (i) Hospitals or medical research organizations described in §§ 170(b)(1)(A)(iii) or 501(r)(2) (A)(i) (cooperative hospital service organizations described in § 501(e)); (j) Cooperative service organizations of operating educational organizations described in § 501(f); (k) Qualified charitable risk pools described in § 501(n); (l) Supporting organizations described in § 509(a)(3); (m) Organizations that have as a substantial purpose providing assistance to individuals through credit counseling activities such as budgeting, personal finance, financial literacy, mortgage foreclosure assistance, or other consumer credit areas; (n) Organizations that invest, or intend to invest, five percent or more of their total assets in securities or funds that are not publicly traded; (o) Organizations that participate, or intend to participate, in partnerships (including entities or arrangements treated as partnerships for Federal tax purposes) in which they share profits and losses with partners other than § 501(c)(3) organizations; (p) Organizations that sell, or intend to sell, carbon credits or carbon offsets; (q) Health Maintenance Organizations (HMOs); (r) Accountable Care Organizations (ACOs), or organizations that engage in, or intend to engage in, ACO activities (such as participation in the Medicare Shared Savings Program (MSSP) or in activities unrelated to the MSSP described in Notice 2011-20, 2011-16 IRB 652); (s) Organizations that maintain, or intend to maintain, one or more donor advised funds; Bulletin No. 2023–1 283 January 3, 2023 (t) Or ganizations that are organized and operated exclusively for testing for public safety and that are requesting a foundation classification under § 509(a)(4); (u) Private operating foundations; (v) Or ganizations that are applying for retroactive reinstatement of tax-exempt status under sections 5 or 6 of Rev. Proc. 2014-11, 2014-3 IRB 411, after being automatically revoked (see section 6.05(3) of this revenue procedure for additional information); (w) Or ganizations applying for retroactive reinstatement under section 4 of Rev. Proc. 2014-11 after being automatically revoked that are seeking a foundation classification that is different from the classification they had at the time of revocation; (x) Agricultural research organizations described in § 170(b)(1)(A)(ix); and (y) Or ganizations that are currently or were previously exempt under another subsection of § 501(c). Further information regarding these eligibility requirements may be provided in the Instructions for Form 1023-EZ. Form 1023 and Form 1023-EZ applications for reinstatement after automatic revocation (3) Form 1023 and Form 1023-EZ applications for reinstatement after automatic revocation. Organizations that claim tax-exempt status under § 501(c) generally must file annual Form 990 series returns or notices, even if they have not yet received their determination letter recognizing their tax-exempt status. If an organization fails to file required Form 990 series returns or notices for three consecutive years, its tax-exempt status will be automatically revoked by operation of § 6033(j). Such an organization may apply for reinstatement of its tax-exempt status, and such recognition may be granted retroactively, as provided in Rev. Proc. 2014-11. Consistent with the eligibility requirements for using Form 1023-EZ that are set forth in section 6.05(1)-(2) of this revenue procedure, only an organization requesting reinstatement of § 501(c)(3) status under section 4 (streamlined retroactive reinstatement of tax-exempt status for small organizations within 15 months of revocation) or section 7 (reinstatement of tax-exempt status from postmark date) of Rev. Proc. 2014-11 may apply using Form 1023-EZ (other than an organization also seeking a foundation status change as explained in section 6.05(2)(w) of Rev. Proc. 2014-11). An organization requesting reinstatement of § 501(c)(3) status under section 5 (retroactive reinstatement of tax-exempt status within 15 months of revocation) or section 6 (retroactive reinstatement more than 15 months after revocation) of Rev. Proc. 2014-11 must apply using Form 1023. .06 What ar e the requirements for a completed application? Requirements for a completed application other than a Form 1023-EZ application (1) A completed application (other than a Form 1023-EZ), including a letter application, is one that— (a) is signed or, in the case of a Form 1023, Form 1024, or Form 1024-A, is electronically signed by an authorized individual under penalties of perjury (see sections 4.04 and 4.06 of this revenue procedure); (b) includes the organization’s correct EIN; January 3, 2023 284 Bulletin No. 2023–1 (c) (i) for organizations other than those described in § 501(c)(3) or (4), includes a statement of receipts and expenditures and a balance sheet for the current year and the three preceding years (or the years the organization was in existence, if less than four years), and if the organization has not yet commenced operations or has not completed one accounting period, a proposed budget for two full accounting periods and a current statement of assets and liabilities; (ii) for organizations described in § 501(c)(3) or (4), see Form 1023 and Instructions for Form 1023 or Form 1024-A and Instructions for Form 1024-A, respectively; (d) includes a detailed narrative statement of proposed activities, including each of the fundraising activities of a § 501(c)(3) organization, and a narrative description of anticipated receipts and contemplated expenditures; (e) includes a copy of the organizing or enabling document that is signed by a principal officer or two members in the case of an unincorporated association, or is accompanied by a written declaration signed by an authorized individual certifying that the document is a complete and accurate copy of the original or otherwise satisfies the requirements of a “conformed copy,” as outlined in Rev. Proc. 68-14, 1968-1 CB 768; (f) if the organizing or enabling document is in the form of articles of incorporation, includes evidence that it was filed with, and approved by, an appropriate state official (e.g., stamped “Filed” and dated by the Secretary of State); alternatively, a copy of the articles of incorporation may be submitted if accompanied by a written declaration signed by an authorized individual that the copy is a complete and accurate copy of the original copy that was filed with and approved by the state; if a copy is submitted, the written declaration must include the date the articles were filed with the state; (g) if the organization has adopted bylaws or similar governing rules, includes a current copy; the bylaws need not be signed if submitted as an attachment to the application for recognition of exemption; otherwise, the bylaws must be verified as current by an authorized individual (see section 4.04 of this revenue procedure); and (h) is accompanied by the correct user fee (and Form 8718, when applicable). Requirements for a completed Form 1023-EZ application (2) A Form 1023-EZ submitted online at www.pay.gov by an eligible organization is complete if it— (a) includes responses for each required line item of the form, including an accurate date of organization and an attestation that the organization has completed the Form 1023-EZ eligibility worksheet, as in effect on the date of submission, is eligible to apply for tax-exempt status using Form 1023-EZ, and has read the Instructions for Form 1023-EZ and understands the requirements to be exempt under § 501(c)(3) as expressed therein; (b) includes the organization’s correct EIN; (c) is electronically signed, under penalties of perjury, by an individual authorized to sign for the organization (as specified in sections 4.04 and 4.06 of this revenue procedure and the Instructions for Form 1023-EZ); and (d) is accompanied by the correct user fee. Bulletin No. 2023–1 285 January 3, 2023 What are the standards for issuing a determination letter on tax-exempt status? A Form 1023-EZ will not be considered complete if the organization’s name and EIN do not match the records in the Service’s Business Master File. Furthermore, a Form 1023-EZ submitted by an organization that is not an eligible organization within the meaning of section 6.05 of this revenue procedure will not be considered complete. .07 T ax-exempt status must be established in application, including attestation and supporting documents (1) A favorable determination letter will be issued to an organization if its completed application, including attestations and supporting documents, along with any additional information requested by the Service and provided by the organization, establishes that it satisfies the particular requirements of the section under which exemption from Federal income tax is claimed. T ax-exempt status may be recognized in advance of actual operations (2) (a) For all applications other than a Form 1023-EZ, tax-exempt status may be recognized in advance of the organization’s operations if the proposed activities are described in sufficient detail to permit a conclusion that the organization will clearly meet the particular requirements for tax-exempt status pursuant to the section of the Code under which tax-exempt status is claimed. (i) A mere restatement of exempt purposes or a statement that proposed activities will be in furtherance of such purposes will not satisfy this requirement. (ii) The organization must fully describe all of the activities in which it expects to engage, including the standards, criteria, procedures, or other means adopted or planned for carrying out the activities, the anticipated sources of receipts, and the nature of contemplated expenditures. (iii) Where the organization cannot demonstrate to the satisfaction of the Service that it qualifies for tax-exempt status pursuant to the section of the Code under which tax-exempt status is claimed, the Service will generally issue a proposed adverse determination letter. See section 9 of this revenue procedure. (b) For Form 1023-EZ applications, tax-exempt status may be recognized in advance of the organization’s operations if the attestations contained in the organization’s completed Form 1023-EZ (along with any additional information requested by the Service and provided by the organization) establish that it satisfies the requirements for tax-exempt status under § 501(c)(3). Even if application is complete, additional information may be required (3) Even though an application is complete, the Service may request additional information before issuing a determination letter. The failure to respond to a request for additional information may result in the closure of the application without a determination letter being issued and without a refund of the user fee. If the failure to respond to a request for additional information results in the Service issuing a proposed adverse determination letter to the organization, the proposed adverse determination letter will inform the organization of its opportunity to protest/appeal the decision and request a conference. See section 9 of this revenue procedure for the applicable appeal/protest procedures. January 3, 2023 286 Bulletin No. 2023–1 (a) In the case of an application under § 501(c)(3), the period of time beginning on the date the Service requests additional information until the date the information is submitted to the Service will not be counted for purposes of the 270-day period referred to in § 7428(b)(2). (b) The Service will select a statistically valid random sample of Form 1023-EZ applications for pre-determination reviews, which will result in requests for additional information. Effective date of tax-exempt status .08 (1) In general. A determination letter recognizing tax-exempt status of an organization described in § 501(c), other than § 501(c)(29), is effective as of the date of formation of an organization if: (1) its purposes and activities prior to the date of the determination letter have been consistent with the requirements for tax-exempt status; and (2) it has filed an application for recognition of exemption within 27 months from the end of the month in which it was organized. (2) When an application is not submitted within 27 months of formation. An organization that otherwise meets the requirements for tax-exempt status and the issuance of a determination letter but does not meet the requirements for recognition from date of formation will be recognized from the postmark date of its application or the submission date of its Form 1023, Form 1023-EZ, Form 1024, or Form 1024-A, as applicable. (3) Application of Treas. Reg. § 301.9100-3: Organizations required to apply for tax-exempt status under §§ 505, 508, and 501(c)(29) and the regulations thereunder. Unlike other tax- exempt organizations, an organization described in § 501(c)(3), (9), or (17) generally is required to apply for recognition of exemption within 27 months from the end of the month in which it was organized in order to be recognized and treated as tax-exempt effective as of the date of formation. See §§ 505 and 508, Treas. Reg. §§ 1.505(c)-1T, 1.508-1(a), and 301.9100-2(a)(2)(iii) and (iv). A similar rule applies to organizations described in § 501(c)(29). See § 501(c)(29), Treas. Reg. § 1.501(c)(29)-1, and Rev. Proc. 2015-17, 2015-7 IRB 599. In its application for recognition of exemption under § 501(c)(3), (9), (17), or (29), an organization that has not filed its application within the required time period may request relief under Treas. Reg. § 301.9100-3 in order to be recognized and treated as tax-exempt effective as of a date earlier than the date of application, and EO Determinations may grant such relief if the requirements for relief are met. An organization applying for recognition of exemption under § 501(c)(3) after 27 months from formation may not use Form 1023-EZ if it requests an effective date earlier than the submission date, but instead must file a Form 1023. An organization will not be granted relief under Treas. Reg. § 301.9100-3 if either (1) granting the request for relief would result in the organization’s tax-exempt status being automatically revoked under § 6033(j)(1) effective before the application date (without regard to the provisions of § 6033(j)(3) and guidance issued thereunder), or (2) the period of limitations on assessment under § 6501(a) for any taxable year for which the organization claims tax-exempt status has expired prior to the date of application. (4) Application of Treas. Reg. § 301.9100-3: Organizations not required to apply for tax- exempt status under §§ 505, 508, or 501(c)(29) and the regulations thereunder. Treas. Reg. § 301.9100-3 does not apply to an organization that is not required to apply for recognition of exemption in order to be tax-exempt, and the Service will not consider a request for relief under Treas. Reg. § 301.9100-3 from such an organization. (5) When the Service requires the organization to make amendments. Bulletin No. 2023–1 287 January 3, 2023 (a) If the Service requires the organization to alter its activities or make substantive amendments to its enabling instrument, tax-exempt status will be effective as of the date specified in the determination letter. (b) If the Service requires the organization to make a non-substantive amendment, tax-exempt status will ordinarily be recognized as of the date of formation if it satisfies the requirements in section 6.08(1) of this revenue procedure. Examples of non-substantive amendments include correction of a clerical error in the enabling instrument or the addition of a dissolution clause where the activities of the organization prior to the determination letter are consistent with the requirements for tax-exempt status. SECTION 7. WHAT ARE THE SPECIFIC PROCEDURES FOR DETERMINATION LETTER REQUESTS ON FORM 8940? In general .01 This section explains the specific procedures for requesting a determination letter by submitting Form 8940, including requests for a determination letter on foundation status. .02 A request described in section 4.02(6) of this revenue procedure must be submitted on Form 8940 (except where otherwise permitted, including when such request is made as part of an application for recognition of exemption), along with all information, documentation, and other materials required by Form 8940 and the instructions thereto, as well as the appropriate user fee provided in Appendix A. For complete information about filing requirements and the submission process, refer to Form 8940 and the Instructions for Form 8940. Requests made on Form 8940 Initial classification of private foundation status .03 All § 501(c)(3) organizations are classified as private foundations under § 509(a) unless they qualify as a public charity under § 509(a)(1) (which cross-references § 170(b)(1)(A)(i)- (vi), and (ix)), (2), (3), or (4). See Treas. Reg. §§ 1.170A-9 and 1.509(a)-1 through 1.509(a)-7. The Service determines an organization’s private foundation or public charity status when the organization files its Form 1023, or when eligible, Form 1023-EZ. This status will be included in the organization’s determination letter on tax-exempt status. Under what circumstances must an organization request a determination of foundation status, and when is such a request optional? .04 (1) Requests to change from one public charity classification to another public charity classification. On its Form 990, Return of Organization Exempt From Income Tax Under section 501(c), 527, or 4947(a)(1) of the Internal Revenue Code (except private foundations), a public charity indicates the paragraph of § 509(a), and subparagraph of § 170(b)(1)(A), if applicable, under which it qualifies as a public charity. Because of changes in its activities or operations, this may differ from the public charity status listed in its original determination letter. Although an organization is not required to obtain a determination letter to qualify for the new public charity status, in order for Service records to recognize any change in public charity status, an organization must obtain a new determination of foundation status by filing Form 8940 pursuant to this revenue procedure. (2) Requests from public charities for private foundation status. If a public charity no longer qualifies as a public charity under § 509(a)(1)-(4), then it becomes a private foundation, and, as a private foundation, it must file Form 990-PF, Return of Private Foundation or Section 4947(a) (1) Trust Treated as Private Foundation. The organization is not required to, but may, obtain a determination letter on its new private foundation status. The organization indicates this change in foundation status by filing its Form 990-PF return and following any procedures specified in the form, instructions, or other published guidance. Thereafter, the organization may terminate its private foundation status, such as by giving notice and qualifying as a public charity again under January 3, 2023 288 Bulletin No. 2023–1 § 509(a)(1)-(3) during a 60-month termination period in accordance with the procedures under § 507(b)(1)(B) and Treas. Reg. § 1.507-2(b). (3) Requests from private foundations for public charity status. An organization that erroneously determined that it was a private foundation (for example, by erroneously classifying an item or items in its calculation of public support) and wishes to correct the error can request a determination letter classifying it as a public charity by showing that it continuously met the public support tests during the relevant periods. (4) Requests for private operating foundation status. A private foundation may qualify as an operating foundation under § 4942(j)(3) without a determination letter from the Service, but the Service will not recognize such status in its records without a determination letter from the Service. An organization claiming to be an exempt operating foundation under § 4940(d)(2) must obtain a determination letter from the Service recognizing such status to be exempt from the § 4940 tax on net investment income. Not applicable to notices submitted by private foundations regarding terminations under § 507 or changes of status pursuant to examination .05 (1) The procedures in this revenue procedure do not apply to the notice an organization must submit in seeking to terminate its private foundation status under § 507. (2) The procedures in this revenue procedure also do not apply to the examination of an organization which results in changes to its foundation status. SECTION 8. WITHDRA WAL OF A REQUEST FOR DETERMINATION LETTER Request may be withdrawn prior to issuance of a determination letter .01 A taxpayer may withdraw a request for a determination letter at any time before the determination letter is issued by the Service. An authorized individual must make such a request in writing in accordance with the instructions to the form on which the request for a determination letter was submitted, if applicable. For purposes of this section 8.01, the issuance of a determination letter includes a proposed adverse determination letter. (1) When a request for determination letter is withdrawn, the Service will retain the application, Form 8940, or letter request and all supporting documents. (2) The Service may consider the information submitted in connection with the withdrawn request in a subsequent examination of the organization, or in connection with a subsequent application submitted by the organization. (3) Generally, the user fee will not be refunded if a request is withdrawn. See section 14 of this revenue procedure. SECTION 7428 IMPLICATIONS OF WITHDRAWAL OF APPLICATION UNDER § 501(C) OR (D) .02 The withdrawal of an application under § 501(c) or (d) is not a failure to make a determination within the meaning of § 7428(a)(2) or an exhaustion of administrative remedies within the meaning of § 7428(b)(2). Bulletin No. 2023–1 289 January 3, 2023 SECTION 9. PROCEDURES FOR ADVERSE DETERMINATION LETTERS In general .01 This section explains the procedures for issuing adverse determination letters. Different procedures apply to adverse determination letters relating to issues that may receive consideration by the Independent Office of Appeals and to all other types of adverse determination letters. Types of requests that may receive Independent Office of Appeals consideration .02 The following types of determination letter requests will provide an organization with an opportunity to protest/appeal a proposed adverse determination— (1) the initial qualification of the organization as exempt from tax under §§ 501(a) or 521, or as an organization described in § 170(c)(2); (2) the classification or reclassification of the organization’s foundation status under § 509(a), including the classification or re-classification of a § 4947(a)(1) non-exempt charitable trust as described in § 509(a)(3); and (3) the classification of the organization as a private operating foundation under § 4942(j)(3). Contents of proposed adverse determination letter for requests with appeals rights .03 If EO Determinations reaches the conclusion that the organization does not meet the requirements for a favorable determination letter and the letter is a type for which an opportunity for protest/appeal is available under section 9.02 of this revenue procedure, the Service will issue a proposed adverse determination letter, which will— (1) include a detailed discussion of the basis for the Service’s conclusion; and (2) inform the organization of its opportunity to protest/appeal the decision and request a conference with the Independent Office of Appeals. The non-acceptance under section 4.10 of this revenue procedure of a request for a determination letter is not a proposed adverse determination. Protest/appeal of a proposed adverse determination letter on certain issues .04 To protest/appeal a proposed adverse determination letter described in section 9.02 of this revenue procedure, the organization must submit a statement of the facts, law, and arguments in support of its position, within 30 days of the date of the proposed adverse determination letter. The organization must also state whether it is requesting a conference with the Independent Office of Appeals. Final adverse determination letter where no protest/ appeal is submitted .05 If an organization does not submit a timely protest/appeal of a proposed adverse determination letter on an issue described in section 9.02 of this revenue procedure, a final adverse determination letter will be issued to the organization. The final adverse letter will provide information about the disclosure of the proposed and final adverse letters. See section 13.04 of this revenue procedure. The non-acceptance under section 4.10 of this revenue procedure of a request for a determination letter is not a final adverse determination. January 3, 2023 290 Bulletin No. 2023–1 Review of protest by EO Determinations .06 If an organization submits a protest/appeal of a proposed adverse determination letter described in section 9.02 of this revenue procedure, EO Determinations will review the protest and, if it determines that the organization satisfies the requirements for approval of its request, issue a favorable determination letter. If EO Determinations maintains its adverse position after reviewing the protest, it will forward the case file to the Independent Office of Appeals. If new information is raised in the protest, EO Determinations will follow the procedures described in section 9.08 of this revenue procedure, which may require the issuance of a new proposed denial, prior to sending the case to the Independent Office of Appeals. Consideration by the Independent Office of Appeals .07 The Independent Office of Appeals will consider the organization’s protest/appeal submitted in response to a proposed adverse determination letter described in section 9.02 of this revenue procedure. If the Independent Office of Appeals agrees with the proposed adverse determination, it will either issue a final adverse determination or, if a conference was requested, contact the organization to schedule a conference. At the end of the conference process, which may involve the submission of additional information, the Independent Office of Appeals will generally issue a final adverse determination letter or a favorable determination letter. If the Independent Office of Appeals believes that the tax-exempt status or private foundation status issue is not covered by published precedent or that there is non-uniformity, the Independent Office of Appeals must request technical advice from the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). See Rev. Proc. 2023-2. Effect of new information raised in protest/appeal .08 If the organization submits new information as part of a protest, or during consideration by the Independent Office of Appeals, the matter may be returned to EO Determinations for further consideration. As a result of its review of the new information, EO Determinations may issue a favorable determination letter, rebuttal letter, or new proposed adverse determination letter. If a rebuttal letter is issued, EO Determinations will forward the case to the Independent Office of Appeals. If a new proposed adverse determination letter is issued, the organization must submit a protest/appeal of the new proposed adverse determination letter in order to have consideration of the issue by the Independent Office of Appeals. An appeal or protest may be withdrawn .09 An organization may withdraw its protest/appeal before the Service issues a final adverse determination letter. Upon receipt of the withdrawal request, the Service will complete the processing of the case in the same manner as if no appeal or protest was received. An organization that withdraws a protest/appeal will not be considered to have exhausted its administrative remedies within the meaning of § 7428(b)(2). Appeal and conference rights not applicable in certain situations .10 The opportunity to appeal a proposed adverse determination letter and the conference rights described above are not applicable to matters where delay would be prejudicial to the interests of the Service (such as in cases involving fraud, jeopardy, the imminence of the expiration of the statute of limitations, or where immediate action is necessary to protect the interests of the Federal government). Adverse determination letter on an issue that will not receive consideration by the Independent Office of Appeals .11 If EO Determinations reaches the conclusion that the organization does not meet the requirements for a favorable determination on an issue that is not described in section 9.02 of this revenue procedure (e.g., advance approval that a potential grant or contribution constitutes an unusual grant; exemption from Form 990 filing requirements), the Service generally will advise the organization of its adverse position and give the organization a chance to submit additional information or withdraw the request before issuing an adverse determination letter, which will include a detailed discussion of the basis for the Service’s conclusion. The organization will not have the opportunity to protest/appeal the adverse determination letter. Bulletin No. 2023–1 291 January 3, 2023 Possible future updates related to review by the Independent Office of Appeals SECTION 10. DECLARATORY JUDGMENT PROVISIONS OF § 7428 Actual controversy involving certain issues .12 As part of the implementation of the Taxpayer First Act, Pub. L. 116-25 (2019), the Service and the Independent Office of Appeals continue to review current policies and procedures and prior administrative pronouncements. As a result of this review, there may be additional updates to this revenue procedure or other forms of guidance. .01 Generally, a declaratory judgment proceeding under § 7428 can be filed in the United States Tax Court, the United States Court of Federal Claims, or the District Court of the United States for the District of Columbia with respect to an actual controversy involving a determination by the Service or a failure of the Service to make a determination with respect to— (1) the initial qualification or continuing qualification of an organization as an organization described in § 501(c)(3) that is exempt from tax under § 501(a) or as an organization described in § 170(c)(2); (2) the initial classification or continuing classification of an organization as a private foundation (as defined in § 509(a)); (3) the initial classification or continuing classification of an organization as a private operating foundation (as defined in § 4942(j)(3)); (4) the initial classification or continuing classification of a cooperative as an organization described in § 521(b) which is exempt from tax under § 521(a); or (5) the initial qualification or continuing qualification of an organization as an organization described in § 501(c) (other than paragraph (3)) or (d) and exempt from tax under § 501(a). Final determination to which § 7428 applies .02 A final determination to which § 7428 applies is a determination letter, sent by certified or registered mail, which holds that the organization is— (1) not described in §§ 501(c), (d), or 170(c)(2); (2) a public charity described in a part of §§ 509 or 170(b)(1)(A) other than the part under which the organization requested classification; (3) not a private operating foundation as defined in § 4942(j)(3); or (4) a private foundation and not a public charity described in a part of §§ 509 or 170(b)(1)(A). Failure to make a determination to which § 7428 applies .03 If the Service declines to issue a determination letter under section 3.02 of this revenue procedure to an organization seeking a determination described in section 10.01 of this revenue procedure, the organization may be able to pursue a declaratory judgment under § 7428, provided that it has exhausted its administrative remedies. January 3, 2023 292 Bulletin No. 2023–1 Section 7428 does not apply to the non-acceptance or withdrawal of a request .04 (1) The non-acceptance for processing of a request under section 4.10 of this revenue procedure is not a final determination or a failure to make a determination to which § 7428 applies. (2) The withdrawal of an application pursuant to section 8 of this revenue procedure is not a failure to make a determination within the meaning of § 7428(b)(2). Exhaustion of administrative remedies .05 Before filing a declaratory judgment action, an organization must exhaust its administrative remedies by taking, in a timely manner, all reasonable steps to secure a determination from the Service. These include— (1) (a) For an organization seeking to be described in § 501(c)(3), filing a completed application Form 1023 (within the meaning of section 6.06(1) of this revenue procedure) or a completed Form 1023-EZ (within the meaning of section 6.06(2) of this revenue procedure); (b) For an organization seeking private foundation classification, filing a completed Form 8940; or (c) For an organization seeking to be described in § 501(c) (other than paragraph (3)) or in § 501(d), filing a completed appropriate Form or letter request (within the meaning of section 6.06(1) of this revenue procedure). (2) In appropriate cases, requesting relief pursuant to Treas. Reg. § 301.9100-1 regarding the extension of time for making an election or application for relief from tax; (3) When applicable, timely submitting all additional information requested by the Service to perfect a determination letter request; (4) In appropriate cases, requesting relief under § 7805(b) in the manner provided in section 12.04 of this revenue procedure; and (5) Exhausting all administrative appeals available within the Service pursuant to section 9 of this revenue procedure. An organization will not have exhausted its administrative remedies by completing the steps in this section 10.05 if the organization submitted Form 1023-EZ but was not eligible to submit Form 1023-EZ, as described in section 6.05(1)-(2) of this revenue procedure. Not earlier than 270 days after seeking determination .06 An organization will in no event be deemed to have exhausted its administrative remedies prior to the earlier of— (1) the completion of all reasonable steps to secure a determination from the Service, including the applicable steps in section 10.05 of this revenue procedure, and the issuance by the Service by certified or registered mail of a final determination letter; or (2) the expiration of the 270-day period described in § 7428(b)(2) in a case where the Service has not issued a final determination letter, and the organization has taken, in a timely manner, all reasonable steps to secure a determination letter as provided in section 10.05 of this revenue procedure. The 270-day period referred to in § 7428(b)(2) will not be considered to have started Bulletin No. 2023–1 293 January 3, 2023 prior to the date a completed application is submitted to the Service. If the Service requests additional information from an organization, the period of time beginning on the date the Service requests additional information until the date the information is submitted to the Service will not be counted for purposes of the 270-day period referred to in § 7428(b)(2). .07 The steps described in section 10.05 of this revenue procedure will not be considered completed until the Service has had a reasonable time to act upon a protest/appeal. Service must have r easonable time to act on an appeal or protest SECTION 11. FAVORABLE DETERMINATION LETTERS Reliance on determination letter .01 A taxpayer ordinarily may rely on a favorable determination letter received from the Service, regardless of the format of request submitted, subject to the conditions and limitations described in this section 11. Limitations on reliance .02 (1) Will not apply to another taxpayer. A taxpayer may not rely on, use, or cite as precedent a determination letter issued to another taxpayer. See § 6110(k)(3). (2) Material change in facts. A determination letter may not be relied upon by the organization submitting the request if there is a material change in facts. For a determination letter on tax- exempt status, a material change includes a change in the character, the purpose, or the method of operation of the organization that is inconsistent with the organization’s tax-exempt status. See section 12.01 of this revenue procedure. (3) Inaccurate information on request. A determination letter issued to an organization that submitted a request in accordance with this revenue procedure may not be relied upon by the organization submitting the request if it was based on any omission or inaccurate material information submitted by the organization. Inaccurate material information includes an incorrect representation or attestation as to the organization’s organizational documents, the organization’s exempt purpose, the organization’s conduct of prohibited and restricted activities, or the organization’s eligibility to file Form 1023-EZ. See section 12.01 of this revenue procedure. (4) Change in law. A change in law may affect reliance. See section 12.01 of this revenue procedure. Post-determination review .03 (1) Determination letters may be post-reviewed. Determination letters may be reviewed by EO Determinations Quality Assurance to assure uniform application of the statutes, tax treaties, regulations, court opinions, or guidance published in the Internal Revenue Bulletin. (2) Procedures for addressing determination letters reviewed and found to have been issued in error. If upon post-determination review EO Determinations Quality Assurance concludes, based on the information contained in the existing application file, that a determination letter January 3, 2023 294 Bulletin No. 2023–1 issued by EO Determinations was issued in error, the matter will be referred to EO Examinations for consideration. .01 In general. A determination letter may be revoked or modified— (1) by a notice to the taxpayer to whom the determination letter was issued; (2) by enactment of legislation or ratification of a tax treaty; (3) by a decision of the Supreme Court of the United States; (4) by the issuance of temporary or final regulations; (5) by the issuance of a revenue ruling, revenue procedure, or other statement published in the Internal Revenue Bulletin; or (6) automatically, by operation of § 6033(j), for failure to file a required annual return or notice for three consecutive years. Note: If an organization no longer qualifies under the Code section for which it originally applied for recognition of exemption, then the determination letter will be revoked, rather than modified. .03 The revocation or modification of a determination letter may be retroactive if— (1) there has been a change in the applicable law; (2) the organization omitted or misstated material information. A misstatement of material information includes an incorrect representation or attestation as to the organization’s organizational documents, the organization’s exempt purpose, the organization’s conduct of prohibited and restricted activities, or the organization’s eligibility to file Form 1023-EZ; (3) the organization operated in a manner materially different from that originally represented in an application for recognition of exemption; or (4) in the case of an organization to which § 503 applies, the organization engaged in a prohibited transaction with the purpose of diverting corpus or income of the organization from its exempt purpose and such transaction involved a substantial part of the corpus or income of such organization. SECTION 12. REV OCATION OR MODIFICATION OF A DETERMINATION LETTER Appeal and conference procedures in the case of revocation or modification of tax-exempt status letter .02 In the case of a revocation or modification of a determination letter described in section 9.02 of this revenue procedure, the procedures to protest/appeal the revocation or modification are generally the same as set out in section 9 of this revenue procedure. However, organizations revoked under § 6033(j) will not have an opportunity for consideration by the Independent Office of Appeals. Revocation or modification of a determination letter may be retroactive Bulletin No. 2023–1 295 January 3, 2023 If a determination letter is revoked or modified by a letter with retroactive effect, the letter will, except in fraud cases, state the grounds on which the determination letter is being revoked or modified and explain the reasons why it is being revoked or modified retroactively. Organization may request that retroactivity be limited under § 7805(b) .04 An organization may seek relief from retroactive revocation or modification of a determination letter under § 7805(b). A request for relief under § 7805(b) must be in writing and must be submitted to the agent or specialist assigned to the case. The request for relief under § 7805(b) must be submitted before issuance of the final adverse determination letter. (1) Form of request for relief. An organization’s request to limit the retroactive effect of the revocation or modification of the determination letter must— (a) state that it is being made under § 7805(b); (b) state the relief sought; (c) explain the reasons and arguments in support of the relief sought; and (d) include any documents bearing on the request. (2) Notice of denial of request for relief. If the request for relief under § 7805(b) is denied, the organization will be notified in writing of the denial. (3) Organization must exhaust its administrative remedies. If an organization seeks declaratory judgment under § 7428 in response to a retroactive revocation or modification, to preserve judicial review of a claim for relief under § 7805(b), the organization must follow the steps in this revenue procedure in order to have exhausted its administrative remedies with respect to its request under § 7805(b). If the organization does not complete the applicable steps, the organization will not have exhausted its administrative remedies as required by § 7428(b)(2) with respect to its request for § 7805(b) relief, and will thus be precluded from obtaining § 7805(b) relief in any declaratory judgment it seeks under § 7428. If the organization has requested § 7805(b) relief, the organization’s administrative remedies with respect to its § 7805(b) request will not be considered exhausted until the Service has had a reasonable amount of time to act upon the request. Effective date of revocation or modification of a determination letter on tax- exempt status .05 Effective date of revocation or modification. (1) If the organization omitted or misstated material information in a request, revocation or modification will be effective as of the effective date of the determination letter issued in response to the request. (2) If there is a material change in facts, inconsistent with the conclusion of a determination letter, revocation or modification will ordinarily take effect as of the date of such material change. (3) If a determination letter was issued in error or is no longer in accord with the Service’s position and § 7805(b) relief is granted (see section 12.04 of this revenue procedure), ordinarily, January 3, 2023 296 Bulletin No. 2023–1 the revocation or modification will be effective not earlier than the date on which the Service modifies or revokes the original determination letter. .01 Sections 6104 and 6110 provide rules for the disclosure of requests, including forms, supporting documents, and determination letters issued in response to requests. (1) A favorable determination letter issued in response to an application for recognition of exemption from Federal income tax under §§ 501 or 521, as well as certain determination letters regarding foundation status are disclosed under § 6104. Determination letters that an applicant organization is exempt from Federal income tax and letters or documents issued by the Service that an organization is or is not a private foundation, or described in §§ 509(a), 4940(d) (2), 4942(j)(3), or 4943(f) are disclosed under § 6104. (2) Other determination letters are disclosed under § 6110. Any determination letter that is not disclosed under § 6104 is disclosed under § 6110. This includes proposed and final denial of tax-exempt status when such denial becomes final, advance approval of grant making procedures described in § 4545(g), advance approval of certain set-asides described in § 4942(g)(2), advance approval of voter registration activities described in § 4945(f), and advance approval of an unusual grant per Rev. Proc. 2018-32, 2018-23 IRB 739. (3) Whether other determination letters are disclosed under §§ 6104 or 6110 will vary based on the type of determination. SECTION 13. DISCLOSURE OF APPLICATIONS AND DETERMINATION LETTERS INCLUDING THAT OF FOUNDATION STATUS Determination letter will be disclosed under §§ 6104 or 6110 depending on the type of request and the type of determination letter issued Disclosure of applications, supporting documents, and favorable determination letters under § 6104 .02 If a favorable determination letter is issued in response to an application for recognition of exemption from Federal income tax under §§ 501 or 521, the application form, any supporting documents, and any determination letter issued in response to the application (including a proposed adverse determination letter) are available for public inspection upon request under § 6104(a)(1). In addition, letters or documents issued by the Service that an organization is or is not a private foundation, or described in §§ 509(a), 4940(d) (2), 4942(j)(3), or 4943(f) are disclosed under § 6104. However, there are certain limited disclosure exceptions for a trade secret, patent, process, style of work, or apparatus, if the Service determines that the disclosure of the information would adversely affect the organization. (1) Favorable determination letters issued in 2014 and later are available on Tax Exempt Organization Search at www.irs.gov/teos. Additionally, the public can request information available for public inspection under § 6104(a)(1) by submitting Form 4506–B, Request for a Copy of Exempt Organization IRS Application or Letter, or by using such other form or procedure as the IRS may specify. Organizations should ensure that applications and supporting documents do not include unnecessary personal identifying information (such as bank account numbers or social security numbers) that could result in identity theft or other adverse consequences if publicly disclosed. (2) The tax-exempt organization is required to make its application for recognition of exemption, supporting documents, and any determination letter issued in response to the application (including a proposed adverse determination letter) available for public inspection without charge. For more Bulletin No. 2023–1 297 January 3, 2023 Disclosure of determination letters under § 6110 information about the tax-exempt organization’s disclosure obligations, see Publication 557, Tax- Exempt Status for Your Organization. .03 The Service is required to make any determination letter that is not disclosed under § 6104, including adverse determinations of tax-exempt status, available for public inspection under § 6110. Upon issuance of the final adverse determination letter to an organization, both the proposed adverse determination letter and the final adverse determination letter will be released pursuant to § 6110. In addition, determinations of advance approval of grant making procedures described in § 4945(g), advance approval of certain set-asides described in § 4942(g)(2), advance approval of voter registration activities described in § 4945(f), and advance approval of an unusual grant per Rev. Proc. 2018-32 will be released pursuant to § 6110. The written determination and background file documents are made available to the public after the deletion of names, addresses, and any other information that might identify the taxpayer. See § 6110(c) for other specific disclosure exemptions. Taxpayer may protest disclosure under § 6110 of certain information in a determination letter .04 If the determination letter is disclosed under § 6110, the determination letter will enclose Notice 437, Notice of Intention to Disclose, and redacted copies of the final and proposed adverse determination letters. Notice 437 provides procedures to follow and instructions if the organization disagrees with the deletions proposed by the Service. Within 20 calendar days after the Service receives the response to the Notice 437, the Service will mail to the taxpayer its final administrative conclusion regarding the deletions to be made. The taxpayer does not have the right to a conference to resolve any disagreements concerning material to be deleted from the text of the determination letter. However, these matters may be taken up at a conference with the Independent Office of Appeals that is otherwise scheduled regarding the request, if available under section 9 of this revenue procedure. Taxpayer may request delay of public inspection under § 6110 .05 After receiving the Notice 437, but within 60 calendar days after the date of notice, the taxpayer may send a request for delay of public inspection under either § 6110(g)(3) or (4). The request for delay must be sent to the Service office indicated on the Notice 437. The request for delay under § 6110(g)(4) must contain a statement from which the Commissioner of Internal Revenue may determine that there are good reasons for the delay. Note: Section 6110(l)(1) states that § 6110 disclosure provisions do not apply to any matter to which § 6104 applies. Therefore, disclosure of determination letters and related background file documents dealing with an approved application for recognition of exemption under § 501(a) as an organization described in § 501(c) or (d), or a notice of status as a political organization under § 527 (covered by § 6104) may not be protested or delayed by request of the taxpayer. Disclosure to state officials when the Service refuses to recognize tax-exempt status under § 501(c)(3) .06 The Service may notify the appropriate state officials of a refusal to recognize an organization as tax-exempt under § 501(c)(3). See § 6104(c). The notice to the state officials may include a copy of a proposed or final adverse determination letter the Service issued to the organization. In addition, upon request by the appropriate state official, the Service may make available for inspection and copying the application for recognition of exemption and other information relating to the Service’s determination on tax-exempt status. The Service does not consider the non-acceptance of an application under section 4.10 of this revenue procedure to be a refusal to recognize an organization as tax-exempt. January 3, 2023 298 Bulletin No. 2023–1 Disclosure to state officials of information about § 501(c)(3) applicants .07 The Service may disclose to state officials the name, address, and identification number of any organization that has applied for recognition of exemption under § 501(c)(3). The Service does not consider an organization the application of which is not accepted under section 4.10 of this revenue procedure to have applied for recognition of exemption. SECTION 14. WHAT ARE THE USER FEE REQUIREMENTS FOR DETERMINATION LETTERS? Legislation authorizing user fees .01 Section 7528 directs the Secretary of the Treasury or delegate (Secretary) to establish a program requiring the payment of user fees for requests to the Service for determination letters and similar requests. The fees charged under the program: (1) are to vary according to categories or subcategories established by the Secretary; (2) are to be determined after taking into account the average time for, and difficulty of, complying with requests in each category and subcategory; and (3) are payable in advance. Section 7528(b)(2) directs the Secretary to provide for exemptions and reduced fees under the program as the Secretary determines to be appropriate, but the average fee applicable to each category must not be less than the amount specified in § 7528(b)(3). Requests to which user fees apply .02 In general, user fees apply to all requests for determination letters described in this revenue procedure. Requests to which a user fee applies must be accompanied by the appropriate fee as determined from the fee schedule provided in Appendix A of this revenue procedure. The fee may be refunded in limited circumstances as set forth in section 14.09 of this revenue procedure. Requests and other actions to which user fees do not apply .03 Actions that do not require the payment of a user fee include— (1) Elections pertaining to automatic extensions of time under Treas. Reg. § 301.9100-1; and (2) Confirmation of tax-exempt status (affirmation letter) (to replace lost tax-exempt status letter and to reflect name and address changes). Exemption from the user fee r equirements .04 Departments, agencies, or instrumentalities of the United States that certify that they are seeking a determination letter on behalf of a program or activity funded by Federal appropriations are exempt from the user fee requirements. The fact that a user fee is not charged under § 7528 has no bearing on whether an applicant is treated as an agency or instrumentality of the United States for purposes of any other provision of the Code. In addition, Canadian registered charities do not pay a user fee. See Appendix A. Requests involving multiple fee categories, issues, or entities .05 Bulletin No. 2023–1 299 January 3, 2023 (1) Requests involving several fee categories. Requests submitted as part of an initial application (e.g., foundation classification; exemption from Form 990 filing requirements) are considered part of the initial application and aren’t subject to an additional user fee. (2) Multiple requests on a single Form 8940. A separate Form 8940 and user fee are generally required for each type of request for which an organization has checked a box on Form 8940. However, the following scenarios are considered a single request— (a) A request for reclassification as a public charity under § 509(a)(3) that checks boxes f and g of Form 8940; or (b) A request for advance approval of grant making procedures for a program described in both § 4945(g)(1) and (3). (3) Requests for separate determination letters for several entities. Each entity involved in a request that desires a separate determination letter in its own name (for example, subordinate organizations seeking change of filing requirements) must pay a separate fee. Payment of a separate fee is required regardless of whether the requests may be viewed as related. Method of payment .06 (1) Payment of user fees for applications of recognition of exemption on Form 1023, Form 1023-EZ, Form 1024, or Form 1024-A. User fees for applications for recognition of exemption on Form 1023, Form 1023-EZ, Form 1024, or Form 1024-A must be paid through www.pay.gov. (2) Payment of user fees for other requests. For requests other than those in section 14.06(1) of this revenue procedure, each request to the Service for a determination letter must be accompanied by a check, payable to the United States Treasury, in the appropriate amount. Taxpayers should not send cash. The check may be converted to an electronic fund transfer. “Electronic fund transfer” is the term used to refer to the process in which the Service electronically instructs the financial institution holding the funds to transfer funds from the account named on the check to the United States Treasury account, rather than processing the check. By sending a completed, signed check to the Service, the Service is authorized to copy the check and to use the account information from the check to make an electronic fund transfer from the account for the same amount as the check. If the electronic fund transfer cannot be processed for technical reasons, the Service is authorized to process the copy of the check. The electronic fund transfer from an account will usually occur within 24 hours, which is faster than a check is normally processed. Therefore, it is necessary to ensure there are sufficient funds available in the checking account when the check is sent to the Service. The check will not be returned from the financial institution. Transmittal forms Effect of nonpayment or payment of incorrect amount .07 Form 8718 should be attached to applications other than Form 1023, Form 1023-EZ, Form 1024, or Form 1024-A, to transmit a check in the amount of the required user fee. .08 It will be the general practice of the Service that— January 3, 2023 300 Bulletin No. 2023–1 (1) An application for a determination letter containing the correct user fee will generally be accepted for processing even if Form 8718 was not attached. (2) If a check is for more than the correct amount, the submission will be accepted for processing and the amount of the excess payment will be returned to the requester. (3) If a check is for less than the correct amount or no check is received, the submission will not be accepted for processing and any user fee that was paid with the request will be refunded. See section 4.10 of this revenue procedure. Refunds of user fees .09 In general, the user fee will not be refunded unless the Service does not accept the request for processing or declines to make a determination on all issues for which a determination letter is requested. (1) Examples in which the user fee will not be refunded: (a) The request for a determination letter is withdrawn at any time subsequent to its receipt by the Service. For example, no fee will be refunded where the taxpayer has been advised that an adverse ruling is contemplated and the taxpayer subsequently withdraws its submission. (b) A determination letter is revoked in whole or in part. The fee paid at the time the original determination letter was requested will not be refunded. (c) The request contains several issues and the Service rules on some, but not all, of the issues. The highest fee applicable to the issues on which the Service rules will not be refunded. (2) The following situations are examples in which the user fee will be refunded: (a) The request is not accepted for processing under section 4.10 of this revenue procedure. (b) The Service declines to rule on the request in accordance with section 3.02 of this revenue procedure. Request for reconsideration of user fee .10 A taxpayer that believes the user fee charged by the Service for its request for a determination letter is either not applicable or incorrect and wishes to receive a refund of all or part of the amount paid (see section 14.09 of this revenue procedure) may request reconsideration and, if desired, the opportunity for an oral discussion by sending a letter to the Internal Revenue Service at the applicable Post Office Box or other address given in section 15 of this revenue procedure. Both the incoming envelope and the letter requesting such reconsideration should be prominently marked “USER FEE RECONSIDERATION REQUEST.” No user fee is required for these requests. The request should be marked for the attention of “Manager, EO Determinations Quality Assurance.” SECTION 15. MAILING ADDRESS FOR REQUESTING DETERMINA TION LETTERS .01 Bulletin No. 2023–1 301 January 3, 2023 (1) The following types of requests and applications handled by the EO Determinations Office should be sent to the Internal Revenue Service Center, at the address in section 15.01(2) of this revenue procedure: (a) applications for recognition of exemption on Form 1028; (b) requests for determination letters submitted on Form 8940; and (c) requests submitted by letter. (2) The address is: Internal Revenue Service P.O. Box 12192 TE/GE Stop 31A Team 105 Covington, KY 41012-0192 .02 Applications for recognition of exemption on Form 1023, Form 1023-EZ, Form 1024, and Form 1024-A are handled by the EO Determinations Office but must be submitted electronically online at www.pay.gov. Paper submissions of Form 1023, Form 1023-EZ, Form 1024, and Form 1024-A will not be accepted for processing. .03 Determinations and requests not subject to a user fee (including a Form 1023 that a Canadian registered charity as referenced in Appendix A submits in order to be listed in the Tax Exempt Organization Search database for organizations eligible to receive tax-deductible charitable contributions (Pub. 78 data) or to determine public charity status) should be sent to the Internal Revenue Service at the address shown below: Internal Revenue Service P.O. Box 2508 Cincinnati, OH 45201 .04 Requests shipped by Express Mail or a private delivery service for all of the above should be sent to: Internal Revenue Service 7940 Kentucky Drive TE/GE Mail Stop 31A Team 105 Florence, KY 41042 Revenue Procedures 2022-5 and 2022-8 are superseded. SECTION 16. EFFECT OF THIS REVENUE PROCEDURE ON OTHER DOCUMENTS SECTION 17. EFFECTIVE DATE This Revenue Procedure is effective January 2, 2023. January 3, 2023 302 Bulletin No. 2023–1 SECTION 18. PAPERWORK REDUCTION ACT The collections of information contained in this revenue procedure have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 USC § 3507) under multiple control numbers. The collection of information on Forms 1023 and 1023-EZ have been reviewed and approved under control number 1545-0047. The collection of information on Forms 1024 and 1024-A have been reviewed and approved under control number 1545-0047. The collection of information on Form 1028 has been reviewed and approved under control number 1545-0047. The collection of information on these forms is required if an organization wants to be recognized as tax-exempt by the Service. The Service needs the information to determine whether the organization satisfies the legal requirements for tax-exempt status. The specific information collected in connection with requesting a letter application has been approved and reviewed under control number 1545-0047. The Service needs this information to determine whether the organization satisfies the legal requirements for tax-exempt status. The collection of information for Form 8940 has been approved and reviewed under control number 1545-2211. This information is required to evaluate and process the request for a determination letter. The collection of information on Form 2848 has been reviewed and approved under control number 1545-0150. It is used to authorize someone to act for the respondent in tax matters. It grants all powers that the taxpayer has except signing a return and cashing refund checks. Data is used to identify authorized representatives and to ensure that confidential information is not divulged to unauthorized persons. The collection of information on Form 8718 has been reviewed and approved under control number 1545-0047. The Omnibus Reconciliation Act of 1990, Pub. L. 101-508, requires payment of a “user fee” with each application for a tax-exempt organization determination letter. Because of this requirement, the Form 8718 was created to provide filers the means to enclose their payment and indicate what type of request they are making. The collections of information are voluntary, to obtain a benefit. The likely respondents are tax- exempt organizations and their authorized representatives. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB number. Books and records relating to the collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by § 6103. DRAFTING INFORMATION The principal author of this Revenue Procedure is Ingrid Vatamanu of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). For additional information, please contact Ms. Vatamanu at 202–317–6177 (not a toll-free number). Bulletin No. 2023–1 303 January 3, 2023 APPENDIX A Schedule of User Fees This table summarizes the various types of Exempt Organization determination letter user fees. ISSUEUSER FEE (1) Application for recognition of exemption under § 501(c)(3) submitted on Form 1023-EZ$275 (2) All other applications for recognition of exemption under § 501 except for those included in (1) of Appendix A of this revenue procedure and under § 521 (other than pension, profit-sharing, and stock bonus plans described in § 401). $600 (3) Group exemption letters$2,500 Note: An additional user fee under (1) or (2) of Appendix A of this revenue procedure above is also required when a central organization submits an initial application for recognition of exemption with its request for a group exemption letter. As explained in section 3.02(11) of this revenue procedure, the Service is not currently accepting requests for group exemption letters. (4) Canadian registered charitiesNone Note: In accordance with the income tax treaty between the United States and Canada, and pursuant to a mutual arrangement between the competent authorities of the two countries, Canadian registered charities are automatically recognized as exempt under § 501(c)(3) without filing an application for recognition of exemption. For details, see Notice 99-47, 1999-2 CB 391. Therefore, no user fee is required when a Canadian registered charity submits a written request to be listed in Tax Exempt Organization Search database for orga- nizations eligible to receive tax-deductible charitable contributions (Pub. 78 data), or for a determination on its private foundation status. For additional information about the submission process, refer to the Form 1023 Instructions. (5) Affirmation Letter – Confirmation of tax-exempt status (to replace lost tax-exempt status letter, and to reflect name and address changes) None (6) Reclassification of private foundation status, including • operating foundation status described in § 4942(j)(3) and exempt operating foundation status described in § 4940(d); • a determination that a public charity is described in § 509(a)(3)(i), (ii), or (iii), including whether or not a Type III supporting organization is functionally integrated; • reclassification of foundation status, including voluntary requests from public charities for private foun- dation status and voluntary requests from public charities, including requests from subordinate organiza- tions, to change from one public charity status to another public charity status; or • final public charity classification determination for organizations whose advance ruling periods expired prior to June 9, 2008, without providing the required information (Form 8940). $550 (7) Regulations § 301.9100 relief in connection with applications for recognition of exemptionNone (8) Section 507 terminations – advance or final ruling under § 507(b)(1)(B) (Form 8940)$550 (9) Section 4942(g)(2) set asides – advance approval (Form 8940) $2,500 (10) Section 4945 advance approval of organization’s grant making procedures (Form 8940) $2,500 (11) Section 4945(f) advance approval of voter registration activities (Form 8940)$2,500 (12) Section 6033 annual information return filing requirements (including a subordinate organization’s change of filing requirements) (Form 8940) $550 (13) Unusual grants to certain organizations under §§ 170(b)(1)(A)(vi) and 509(a)(2) (Form 8940)$550 (14) User Fee for determination letters under the jurisdiction of the Determinations Office not otherwise described or covered in this Appendix. $550 January 3, 2023 304 Bulletin No. 2023–1 APPENDIX B Authorized Representatives To sign a request for a determination letter or to appear before the Service in connection with the request, the representative must be: Attorney (a) An attorney who is a member in good standing of the bar of the highest court of any state, possession, ter- ritory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service on Form 2848 showing current qualification as an attorney and current authorization to represent the taxpayer. Certified public accountant (b) A certified public accountant who is qualified to practice in any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service on Form 2848 showing current qualification as a certified public accountant and current authorization to represent the taxpayer. Enrolled agent (c) An enrolled agent, other than an attorney or certified public accountant, that is currently enrolled to practice before the Service and is not currently under suspension or disbarment from practice before the Service, in- cluding a person enrolled to practice only for employee plans matters. He or she must file a written declaration with the Service on Form 2848 showing current enrollment and authorization to represent the taxpayer. Either the enrollment number or the expiration date of the enrollment card must be included in the declaration. For the rules on who may practice before the Service, see Treasury Department Circular No. 230. A person with a “Letter of Authorization” (d) Any other person, including a foreign representative, who has received a “Letter of Authorization” from the Director, Office of Professional Responsibility under section 10.7(d) of Treasury Department Circular No. 230. He or she must file a written declaration with the Service on Form 2848 (or equivalent power of attorney and declaration of representative) showing authorization to represent the taxpayer with a copy of the “Letter of Authorization” attached. A person may make a written request for a “Letter of Authorization” to: Director, Office of Professional Re- sponsibility, Internal Revenue Service, 1111 Constitution Avenue N.W., Washington, DC 20224. Circular No. 230 section 10.7(d) (“Special appearances”) authorizes the Commissioner, or delegate, to allow an individual who is not otherwise eligible to practice before the Service to represent another person in a particular matter. Employee, general partner, bona fide officer, administrator, trustee, etc. (e) A regular full-time employee representing his or her employer, a general partner representing his or her partnership, a bona fide officer representing his or her corporation, association, or organized group, a trustee, receiver, guardian, personal representative, administrator, or executor representing a trust, receivership, guard- ianship, or estate, or an individual representing his or her immediate family. He or she may be required to file a written declaration with the Service on Form 2848 showing authorization to represent the taxpayer. See Form 2848 for more information. A preparer of a return (other than a person referred to in paragraph (a), (b), or (c) of this Appendix B) who is not a full-time employee, general partner, a bona fide officer, an administrator, trustee, etc., or an individual representing his or her immediate family may not represent a taxpayer in connection with a determination letter or a technical advice request. See section 10.7(c) of Treasury Department Circular No. 230. Foreign representative (f) A foreign representative (other than a person referred to in paragraph (a), (b), or (c) of this Appendix B) is not authorized to practice before the Service and, therefore, must withdraw from representing a taxpayer in a request for a determination letter. In this situation, the nonresident alien or foreign entity must submit the request for a determination letter on the individual’s or entity’s own behalf or through a person referred to in paragraph (a), (b), or (c) of this Appendix B. Bulletin No. 2023–1 305 January 3, 2023 26 CFR § 601.201: Rulings and determination letters Areas in which rulings will not be issued, Associate Chief Counsel (International). Rev. Proc. 2023-7 SECTION 1. PURPOSE .01 Purpose This revenue procedure updates Rev. Proc. 2022-7, 2022-1 I.R.B. 297, by pro- viding a current list of those areas of the Internal Revenue Code under the juris- diction of the Associate Chief Counsel (International) (hereinafter “the Office”) relating to matters on which the Internal Revenue Service will not issue letter rul- ings or determination letters. .02 Changes Section 4.01(1) adds whether a trans- feree foreign corporation, or any qualified subsidiary or any qualified partnership, is engaged in an active trade or business, un- der §1.367(a)-3(c)(3)(i)(A), outside of the United States to the list of areas for which letter rulings and determination letters or- dinarily will not be issued. SECTION 2. BACKGROUND AND SCOPE OF APPLICATION .01 Background In the interest of sound tax administra- tion, the Service answers inquiries from individuals and organizations regarding their status for tax purposes and the tax effects of their acts or transactions before the filing of returns or reports that are required by the Internal Revenue Code. There are, however, areas where the Ser- vice will not issue letter rulings or deter- mination letters, either because the issues are inherently factual or for other reasons. These areas are set forth in sections 3 and 4 of this revenue procedure. Section 3 lists areas in which letter rul- ings and determination letters will not be issued under any circumstances. Section 4 lists areas in which letter rul- ings and determination letters ordinarily will not be issued; in these areas, unique and compelling reasons may justify issu- ing a letter ruling or determination letter. A taxpayer who plans to request a letter ruling or determination letter in an area described in Section 4 should first contact the Office by telephone or in writing to discuss the unique and compelling reasons that the taxpayer believes justify issuing the letter ruling or determination letter. Al- though not required, a written submission is encouraged because it will enable Of- fice personnel to arrive more quickly at an understanding of the unique facts of each case. A taxpayer who contacts the Office by telephone may be requested to provide a written submission. The Service may provide a general in- formation letter in response to inquiries in areas on either the Section 3 or Section 4 list. These lists are not all-inclusive. Fu- ture revenue procedures may add or de- lete items. The Service may also decline to rule on an individual case for reasons peculiar to that case, and the decision will not be announced in the Internal Revenue Bulletin. See Rev. Proc. 2023-1, Section 6.02. .02 Scope of Application This revenue procedure does not pre- clude the submission of requests for tech- nical advice to the Office from other offic- es of the Service. SECTION 3. AREAS IN WHICH LETTER RULINGS OR DETERMINATION LETTERS WILL NOT BE ISSUED .01 Specific Questions and Problems (1) Section 861.—Income from Sourc- es Within the United States.—A method for determining the source of a pension payment to a nonresident alien individual from a trust under a defined benefit plan that is qualified under § 401(a) if the pro- posed method is inconsistent with §§ 4.01, 4.02, and 4.03 of Rev. Proc. 2004-37, 2004-1 C.B. 1099. (2) Section 862.—Income from Sourc- es Without the United States.—A method for determining the source of a pension payment to a nonresident alien individual from a trust under a defined benefit plan that is qualified under § 401(a) if the pro- posed method is inconsistent with §§ 4.01, 4.02, and 4.03 of Rev. Proc. 2004-37, 2004-1 C.B. 1099. (3) Section 871(g).—Special Rules for Original Issue Discount.—Whether a debt instrument having original issue discount within the meaning of § 1273 is not an original issue discount obligation within the meaning of § 871(g)(1)(B)(i) when the instrument is payable 183 days or less from the date of original issue (without re- gard to the period held by the taxpayer). (4) Section 894.—Income Affected by Treaty.—Whether a person that is a resi- dent of a foreign country is entitled to ben- efits under the United States income tax treaty with that foreign country pursuant to the limitation on benefits article. How- ever, the Service may rule regarding the legal interpretation of a particular provi- sion within the relevant limitation on ben- efits article. (5) Section 954.—Foreign Base Com- pany Income.—The effective rate of tax that a foreign country will impose on in- come. (6) Section 954.—Foreign Base Com- pany Income.—Whether the facts and cir- cumstances show that a controlled foreign corporation makes a substantial contribu- tion through the activities of its employ- ees to the manufacture, production, or construction of the personal property sold within the meaning of § 1.954-3(a)(4)(iv). (7) Sections 7701(b) and 894.—Defi- nition of Resident Alien and Nonresident Alien.—Whether an alien individual, whether or not a dual resident alien, is a nonresident of the United States, includ- ing whether the individual has met the requirements of the substantial presence test or exceptions thereto, or whether the alien is solely a nonresident under a United States income tax treaty. However, the Service may rule regarding the legal interpretation of a particular provision of § 7701(b) or the regulations thereunder. .02 General Areas. (1) The prospective application of the estate tax to the property or the estate of a living person, except that rulings may be issued on any international issues in a rul- ing request accepted pursuant to § 5.06 of Rev. Proc. 2023-1, in this Bulletin. (2) Whether reasonable cause exists under Subtitle F (Procedure and Adminis- tration) of the Code. (3) Whether a proposed transaction would subject a taxpayer to criminal pen- alties. (4) Any area where the ruling request does not comply with the requirements of Rev. Proc. 2023-1. (5) Any area where the same issue is the subject of the taxpayer’s pending re- January 3, 2023 306 Bulletin No. 2023–1 quest for competent authority assistance under a United States income tax treaty. (6) A “comfort” ruling will not be is- sued with respect to an issue that is clearly and adequately addressed by statute, reg- ulations, decisions of a court, tax treaties, revenue rulings, or revenue procedures absent extraordinary circumstances (e.g., a request for a ruling required by a gov- ernmental regulatory authority in order to effectuate the transaction). (7) Any frivolous issue, as that term is defined in § 6.10 of Rev. Proc. 2023-1. SECTION 4. AREAS IN WHICH LETTER RULINGS OR DETERMINATION LETTERS WILL NOT ORDINARILY BE ISSUED .01 Specific Questions and Problems (1) Section 367(a).—Transfers of Prop- erty from the United States.— Whether the transferee foreign corporation, or any qualified subsidiary or any qualified part- nership, is engaged in an active trade or business outside the United States for pur- poses of § 1.367(a)-3(c)(3)(i)(A). (2) Section 367(a).—Transfers of Prop- erty from the United States.— Whether a transferred corporation subject to a gain recognition agreement under § 1.367(a)- 8 has disposed of substantially all of its assets. (3) Section 367(b).—Other Trans- fers.—Whether and the extent to which regulations under § 367(b) apply to an exchange involving foreign corporations, unless the ruling request presents a sig- nificant legal issue or subchapter C rul- ings are requested in the context of the exchange. (4) Section 864.—Definitions and Special Rules.—Whether a taxpayer is engaged in a trade or business within the United States, and whether income is ef- fectively connected with the conduct of a trade or business within the United States; whether an instrument is a security as de- fined in § 1.864-2(c)(2); whether a taxpay- er effects transactions in the United States in stocks or securities under § 1.864-2(c) (2); whether an instrument or item is a commodity for purposes of § 1.864-2(d) (3); and for purposes of § 1.864-2(d)(1) and (2), whether a commodity is of a kind customarily dealt in on an organized com- modity exchange, and whether a transac- tion is of a kind customarily consummated at such place. (5) Section 871(h).—Repeal of Tax on Interest of Nonresident Alien Individuals Received from Certain Portfolio Debt Investments.—Whether a payment con- stitutes portfolio interest under § 871(h); whether an obligation qualifies for any of the components of portfolio interest such as being in registered form; and whether the income earned on contracts that do not qualify as annuities or life insurance con- tracts because of the limitations imposed by §§ 72(s) and 7702(a) is portfolio inter- est as defined in § 871(h). (6) Section 881(c).—Repeal of Tax on Interest of Foreign Corporations Re- ceived from Certain Portfolio Debt In- vestments.— Whether a payment con- stitutes portfolio interest under § 881(c); whether an obligation qualifies for any of the components of portfolio interest such as being in registered form; and whether the income earned on contracts that do not qualify as annuities or life insurance con- tracts because of the limitations imposed by §§ 72(s) and 7702(a) is portfolio inter- est as defined in § 881(c). (7) Section 892.—Income of Foreign Governments and of International Organi- zations.—Whether income derived by for- eign governments and international orga- nizations is excluded from gross income and exempt from taxation and any under- lying issue related to that determination. (8) Section 893.—Compensation of Employees of Foreign Governments and International Organizations.—Whether wages, fees, or salary of an employee of a foreign government or of an international organization received as compensation for official services to such government or in- ternational organization is excluded from gross income and exempt from taxation and any underlying issue related to that determination. (9) Section 894.—Income Affected by Treaty.—Whether the income received by an individual in respect of services rendered to a foreign government or a political subdivision or a local authority thereof is exempt from federal income tax or withholding under any of the Unit- ed States income tax treaties that contain provisions applicable to such individuals. (10) Section 894.—Income Affected by Treaty.—Whether a taxpayer has a per- manent establishment in the United States for purposes of any United States income tax treaty and whether income is attribut- able to a permanent establishment in the United States. (11) Section 894.—Income Affected by Treaty.—Whether certain persons will be considered liable to tax under the laws of a foreign country for purposes of de- termining if such persons are residents within the meaning of any United States income tax treaty, including pursuant to Rev. Rul. 2000-59, 2000-2 C.B. 593. (12) Section 894.—Income Affected by Treaty.—Whether the income received by a nonresident alien student or trainee for services performed for a university or other educational institution is exempt from fed- eral income tax or withholding under any of the United States income tax treaties that contain provisions applicable to such non- resident alien students or trainees. (13) Section 894.—Income Affect- ed by Treaty.—Whether the income re- ceived by a nonresident alien performing research or teaching as personal services for a university, hospital or other research institution is exempt from federal income tax or withholding under any of the Unit- ed States income tax treaties that contain provisions applicable to such nonresident alien teachers or researchers. (14) Section 894.—Income Affected by Treaty.—Whether a recipient of a pay- ment is the beneficial owner for purposes of any United States income tax treaty. (15) Section 894.—Income Affected by Treaty.—Whether an entity is treated as fiscally transparent by a foreign juris- diction for purposes of § 894(c) and the regulations thereunder or pursuant to any United States income tax treaty. (16) Section 895.—Income derived by a foreign central bank of issue from obli- gations of the United States or from bank deposits.—Whether income derived by a foreign central bank of issue is excluded from gross income and exempt from tax- ation and any underlying issue related to that determination. (17) Section 901.—Taxes of Foreign Countries and of Possessions of United States.—Whether a foreign levy meets the requirements of a creditable tax under § 901. (18) Section 901.—Taxes of Foreign Countries and of Possessions of Unit- Bulletin No. 2023–1 307 January 3, 2023 ed States.—Whether a person claiming a credit has established, based on all of the relevant facts and circumstances, the amount (if any) paid by a dual capacity taxpayer under a qualifying levy that is not paid in exchange for a specific eco- nomic benefit. See § 1.901-2A(c)(2). (19) Section 903.—Credit for Taxes in Lieu of Income, Etc., Taxes.— Whether a foreign levy meets the requirements of a creditable tax under § 903. (20) Section 937.—Definition of Bona Fide Resident.—Whether an individual is a bona fide resident of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, or the U.S. Virgin Islands. However, the Service may rule regarding the legal interpretation of a particular pro- vision of § 937(a) or the regulations there- under. (21) Sections 954(d), 993(c).—Manu- factured Product.—Whether a product is manufactured or produced for purposes of §§ 954(d) and 993(c). (22) Section 956.—Investment of Earnings in United States Property.— Whether a pledge of the stock of a con- trolled foreign corporation is an indirect pledge of the assets of that corporation. See § 1.956-2(c)(2). (23) Section 985.—Functional Curren- cy.—Whether a currency is the functional currency of a qualified business unit. (24) Section 989(a).—Qualified Busi- ness Unit.—Whether a unit of the taxpay- er’s trade or business is a qualified busi- ness unit. (25) Section 1058.—Transfers of Se- curities Under Certain Agreements.— Whether the amount of any payment de- scribed in § 1058(b)(2) or the amount of any other payment made in connection with a transfer of securities described in § 1058 is from sources within or without the United States; the character of such amounts; and whether the amounts con- stitute a particular kind of income for purposes of any United States income tax treaty. (26) Section 1059A.—Limitation on Taxpayer’s Basis or Inventory Cost in Property Imported from Related Per- sons.—Whether a taxpayer’s cost or in- ventory basis in property imported from a foreign affiliate will not be limited by § 1059A due to differences between cus- toms valuation and tax valuation. (27) Sections 1471, 1472, 1473, and 1474.—Taxes to Enforce Reporting on Certain Foreign Accounts.—Whether a taxpayer, withholding agent, or intermedi- ary has properly applied the requirements of chapter 4 of the Internal Revenue Code (§§ 1471 through 1474, also known as “FATCA”) or of an applicable intergov- ernmental agreement to implement FAT- CA. (28) Section 1503(d).—Dual Consol- idated Loss.—Whether the income tax laws of a foreign country would deny any opportunity for the foreign use of a dual consolidated loss in the year in which the dual consolidated loss is incurred under § 1.1503(d)-3(e)(1); whether no possibili- ty of foreign use exists under § 1.1503(d)- 6(c)(1); whether an event presumptive- ly constitutes a triggering event under § 1.1503(d)-6(e)(1)(i)-(ix); whether the presumption of a triggering event is re- butted under § 1.1503(d)-6(e)(2); and whether a domestic use agreement termi- nates under § 1.1503(d)-6(j)(1). (29) Section 2501.—Imposition of Tax.—Whether a partnership interest is intangible property for purposes of § 2501(a)(2) (dealing with transfers of in- tangible property by a nonresident not a citizen of the United States). (30) Section 7701.—Definitions.— Whether an estate or trust is a foreign estate or trust for federal income tax pur- poses. (31) Section 7701.—Definitions.— Whether an intermediate entity is a con- duit entity under § 1.881-3(a)(4); whether a transaction is a financing arrangement under § 1.881-3(a)(4)(ii); whether the participation of an intermediate entity in a financing arrangement is pursuant to a tax avoidance plan under § 1.881-3(b); whether an intermediate entity performs significant financing activities under § 1.881-3(b)(3)(ii); whether an unrelated intermediate entity would not have partic- ipated in a financing arrangement on sub- stantially the same terms under § 1.881- 3(c). (32) Section 7874.—Expatriated Enti- ties and Their Foreign Parents.— Wheth- er, after the acquisition, the expanded affiliated group has substantial business activities in the foreign country in which, or under the law of which, the foreign entity is created or organized, when com- pared to the total business activities of the expanded affiliated group. (33) Section 7874.—Expatriated Enti- ties and Their Foreign Parents.— Whether a foreign corporation completes the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership. .02 General Areas (1) Whether a taxpayer has a business purpose for a transaction or arrangement. (2) Whether a taxpayer uses a correct North American Industry Classification System (NAICS) code or Standard Indus- trial Classification (SIC) code. (3) Any transaction, or series of transac- tions, that is designed to achieve a different tax consequence or classification under U.S. tax law (including tax treaties) and the tax law of a foreign jurisdiction, where the re- sults of that different tax consequence or classification are inconsistent with the pur- poses of U.S. tax law (including tax treaties). (4)(a) Situations where a taxpayer or a related party is domiciled or organized in a foreign jurisdiction with which the United States does not have an effective mecha- nism for obtaining tax information with re- spect to civil tax examinations and criminal tax investigations, which would preclude the Service from obtaining information lo- cated in such jurisdiction that is relevant to the analysis or examination of the tax is- sues involved in the ruling request. (b) The provisions of subsection 4.02(4)(a) above shall not apply if the tax- payer or affected related party (i) consents to the disclosure of all relevant informa- tion requested by the Service in process- ing the ruling request or in the course of an examination to verify the accuracy of the representations made and to otherwise an- alyze or examine the tax issues involved in the ruling request, and (ii) waives all claims to protection of bank or commer- cial secrecy laws in the foreign jurisdiction with respect to the information requested by the Service. In the event the taxpayer’s or related party’s consent to disclose rele- vant information or to waive protection of bank or commercial secrecy is determined by the Service to be ineffective or of no force and effect, then the Service may ret- roactively rescind any ruling rendered in reliance on such consent. January 3, 2023 308 Bulletin No. 2023–1 (5) The federal tax consequences of proposed federal, state, local, municipal, or foreign legislation. (6)(a) Situations involving the inter- pretation of foreign law or foreign doc- uments. The interpretation of a foreign law or foreign document means making a judgment about the import or effect of the foreign law or document that goes beyond its plain meaning. (b) The Service, at its discretion, may consider ruling requests that involve the interpretation of foreign laws or foreign documents. In these cases, the Service may request information in addition to that listed in § 7.01(2) and (6) of Rev. Proc. 2023-1, including a discussion of the implications of any authority believed to interpret the foreign law or foreign doc- ument, such as pending legislation, trea- ties, court decisions, notices, or adminis- trative decisions. (7) The treatment or effects of hook equity, as described in section 4.02(11) of Rev. Proc. 2023-3, in this Bulletin. SECTION 5. EFFECT ON OTHER REVENUE PROCEDURES Rev. Proc. 2022-7 is superseded. SECTION 6. EFFECTIVE DATE This revenue procedure is effective January 3, 2023. SECTION 7. DRAFTING INFORMATION This revenue procedure was compiled by Nancy M. Galib of the Office of As- sociate Chief Counsel (International). For further information regarding this revenue procedure contact Ms. Galib at (202) 317- 3800 (not a toll-free number). Bulletin No. 2023–1 i January 3, 2023 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 effect: Amplified describes a situation where no change is being made in a prior pub- lished position, but the prior position is being extended to apply to a variation of the 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 with modified, below). Clarified is 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 rul- ing is being changed. Distinguished describes a situation where a ruling mentions a previously pub- lished ruling and points out an essential difference between them. Modified is 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 with amplified and clarified, above). Obsoleted describes a previously pub- lished ruling that is not considered deter- minative with respect to future transactions. This term is most commonly used in a ruling that lists previously published rulings 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. Revoked describes situations where the position in the previously published ruling is not correct and the correct position is being stated in a new ruling. Superseded describes a situation where the new ruling does nothing more than restate the substance and situation of a previously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same position published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single ruling a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new ruling does more than restate the sub- stance of a prior ruling, a combination of terms is used. For example, modified and superseded describes 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 previous- ly published ruling in a new ruling that is self contained. In this case, the previously published ruling is first modified and then, as modified, is superseded. Supplemented is 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 ruling has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the additions, and supersedes all prior rul- ings in the series. Suspended is 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 cas- es in litigation, or the outcome of a Ser- vice study. Abbreviations The following abbreviations in current use and formerly used will appear in material published in the Bulletin. A—Individual. Acq.—Acquiescence. B—Individual. BE—Beneficiary. BK—Bank. B.T.A. —Board of Tax Appeals. C—Individual. C.B.—Cumulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Cooperative. Ct.D.—Court Decision. CY—County. D—Decedent. 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—Employer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduciary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Foreign International Sales Company. FPH—Foreign Personal Holding Company. F.R. —Federal Register. FUTA—Federal Unemployment Tax Act. FX—Foreign corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grantee. GP—General Partner. GR—Grantor. IC—Insurance Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—Nonacquiescence. O—Organization. P—Parent Corporation. PHC—Personal Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Partnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Real Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsidiary. S.P.R. —Statement of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Transferee. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpayer. TR—Trust. TT—Trustee. U.S.C.—United States Code. X—Corporation. Y—Corporation. Z—Corporation. January 3, 2023 ii Bulletin No. 2023–1 Numerical Finding List 1 Bulletin 2023–1 Revenue Procedures: 2023-1, 2023-01 I.R.B. 1 2023-2, 2023-01 I.R.B. 120 2023-3, 2023-01 I.R.B. 144 2023-4, 2023-01 I.R.B. 162 2023-5, 2023-01 I.R.B. 265 2023-7, 2023-01 I.R.B. 305 1 A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2022–27 through 2022–52 is in Internal Revenue Bulletin 2022–52, dated December 27, 2022. Bulletin No. 2023–1 iii January 3, 2023 Finding List of Current Actions on Previously Published Items 1 Bulletin 2023–1 1 A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2022–27 through 2022–52 is in Internal Revenue Bulletin 2022–52, dated December 27, 2022. Internal Revenue Service Washington, DC 20224 Official Business Penalty for Private Use, $300 INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue Bulletins are available at www.irs.gov/irb/. 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 Internal Revenue Service, Publishing Division, IRB Publishing Program Desk, 1111 Constitution Ave. NW, IR-6230 Washington, DC 20224.
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