We had previous posted Are Your Ready For The IRS’ New Rigid IDR Enforcement Procedures? regarding that on June 18, 2013, the Acting LB&I Commissioner issued a directive (LB&I Control No: LB&I-04-0613-004) to LB&I employees announcing that for all IDRs issued after June 30, 2013:
1. The examiner must identify and state the issue that has led the examiner to request the information included in the lDR.
2. The examiner must discuss the IDR with the taxpayer in advance of issuing it, and both parties must discuss and determine a reasonable timeframe for response.
3. When all of these steps are followed, the expected outcome is that the lDR process will be more efficient, and as a result, there will be less need to enforce IDRs through summonses.
A. Requirements for Issuing IDRs
IDRs are an important part of the information gathering process during any examination. When issuing IDRs, LB&I examiners and specialists should follow the requirements listed below:
1. Discuss the issue related to the IDR with the taxpayer.
2. Discuss how the information requested is related to the issue under consideration and why it is necessary.
3. After this consultation with the taxpayer, determine what information will ultimately be requested in the IDR.
4. Ensure the IDR clearly states the issue that is being considered and that the IDR only requests information relevant to the stated issue.
5. Prepare one IDR for each issue.
6. Utilize numbers or letters on the IDR for clarity.
7. Ensure that the IDR is written using clear and concise language.
8. Ensure that the IDR is customized to the taxpayer or industry.
9. Provide a draft of the IDR and discuss its contents with the taxpayer.
10. After this discussion is complete, determine with the taxpayer a reasonable timeframe for a response to the IDR.
11. If agreement on a response date cannot be reached, the examiner or specialist will set a reasonable response date for the IDR.
12. When determining the response date, ensure that the examiner or specialist commits to a date by which the IDR will be reviewed and a response provided to the taxpayer on whether the information received satisfies the IDR. This date should be noted on the IDR.
13. If the information requested in the IDR is not received by the response date, the examiner or specialist will follow the IDR Enforcement Process set forth in Attachment 2.
On November 4, 2013, the IRS has issued a second directive to LB&I employees, that fleshes out the components of the June 18, 201 directive (LB&I Control No: LB&I-04-1113-009); which provides that as of November 4, 2013, all LB&I managers, examiners and specialists must ensure that all outstanding and future IDRs comply with the new requirements for issuing IDRs.
B. New IDR Enforcement Process involves three graduated steps:
1. a Delinquency Notice;
2. a Pre-Summons Letter; and
3. a Summons.
• Delinquency Notice (Letter 5077)
If a taxpayer does not provide a complete response to an IDR by the response date, the examiner or specialist will complete the first phase of the enforcement process, the Delinquency Notice, by following the procedures described below:
1. Discuss with the appropriate personnel from both the IRS and the taxpayer the IDR and the IDR response to identify what information is missing.
2. Discuss the Delinquency Notice with the taxpayer. During this discussion, ensure that the taxpayer understands the next steps in the enforcement process if the information requested in the IDR is not provided by the response date established in the Delinquency Notice.
3. Issue the Delinquency Notice signed by the Team Manager to the taxpayer within 10 calendar days of the IDR response date. The Delinquency Notice should include a response date that is generally no more than 15 calendar days from the date of the Delinquency Notice.
4. A Territory Manager must approve any date beyond a 15 calendar day response period.
5. Provide a copy of the Delinquency Notice and the IDR to your assigned Counsel.
• Pre-Summons Letter (Letter 5078)
If a taxpayer does not provide a complete response to an IDR by the response date in the Delinquency Notice, the examiner or specialist will complete the next phase of the enforcement process, the Pre-Summons Letter, by following the procedures described below:
1. Discuss the lack of response to the Delinquency Notice with the Team Manager, Specialist Manager, the respective Territory Managers and Counsel and prepare the Pre-Summons Letter.
2. The appropriate Territory Manager will discuss the Pre-Summons Letter with the taxpayer. During this discussion, ensure that the taxpayer understands the next steps in the enforcement process if the information requested in the IDR is not provided by the response date established in the Pre-Summons Letter.
3. Issue a Pre-Summons Letter signed by the appropriate Territory Manager. This must be done as quickly as possible but generally no later than 14 calendar days after the due date of the Delinquency Notice. Address this letter to the taxpayer management official that is at a level equivalent to the LB&I Territory Manager. This should be a level of management above the taxpayer management official that received the Delinquency Notice.
4. Include a response date in the Pre-Summons Letter that is generally 10 calendar days from date of Pre-Summons letter.
5. A Director of Field Operations (DFO) must approve any date beyond a 10 calendar day response period.
6. Discuss the Pre-Summons Letter with Counsel.
7. DFO(s) must be made aware of the Pre-Summons Letter prior to issuance.
If a taxpayer does not provide a complete response to an IDR by the response date in the Pre-Summons Letter, the examiner or specialist will complete the next phase of the enforcement process, the Summons, by following the procedures described below:
1. Discuss the lack of response to the Pre-Summons Letter with the Team Manager, Specialist Manager, the respective Territory Managers and DFOs, and Counsel and prepare the Summons.
2. Coordinate the issuance of the Summons with assigned Counsel.
3. Summons procedures can be found in IRM Section 25.5.
This Process is Mandatory and Has No Exceptions!
We already have a couple of audits that are in compliance with this new directive and it is apparent that both the taxpayer’s representatives and the IRS are going to have huge learning curve during its implementation.
Our initial impression is that delivery dates are at best unrealistic, since they are agreed to at the very beginning of the audit, when neither side truly understands the extent or scope of the issues and/or the availability of the requested information or the difficulty in producing or re-creating credible evidence for the years requested. (e.g. where a Corporation was bought out or merged with a new Corporation; where a taxpayer switched computer systems and the requested information is stored on old system, etc.). We would advise the IRS to not strictly adhere to this rigid framework!
Where it is apparent that the original agreed to delivery dates are at best unreasonable or were upon further reflection impossible; the Revenue Agent should issue a second set of amended agreed to dates especially where the facts support it!