Nominees and the Alter Ego Doctrine: IRS ENFORCEMENT

The doctrine by which a court of law holds individual shareholders liable for a corporation’s debts if the corporation is deemed to be nothing more than an “alter ego” of the corporation’s owners.

“In a nutshell, the nominee and alter ego theory holds that when a taxpayer retains the benefit, use, or control of transferred assets, the IRS may seize those assets – and quite literally, put the financial boots to you!” says David Selig of Selig and Associates.

FYI Fraud is not a necessary element for the application of the alter ego doctrine. Ragan v. Ragan v. Tri-County Excavating, Inc., 62 F.3d at 508 (Under Pennsylvania law, “no finding of fraud or illegality is required before the corporate veil may be pierced, but rather the corporate entity may be disregarded ‘whenever it is necessary to avoid injustice.’”) (citations omitted) (non-tax case); DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d 681, 684 (4th Cir. 1976) (non-tax case) (“[P]roof of plain fraud is not a necessary element in a finding to disregard the corporate entity.”) (citing, among other cases, Anderson v. Abbott, 321 U.S. 349, 362 (1944); National Marine Service, Inc. v. C.J. Thibodeaux & Co., 501 F.2d 940, 942 (5th Cir. 1974)). The Eighth Circuit in Scherping, supra, also noted that “proof of strict common law fraud was not required” to apply the reverse piercing branch of the alter ego doctrine, and affirmed the district court’s holding that the trusts were “sham entities created on behalf of and used by the taxpayers to evade payment of their federal income tax liabilities.” 187 F.3d at 802 (citations omitted).

Courts that have been called upon to apply the alter ego doctrine in tax cases use objective factors in determining whether an alter ego relationship exists. See, e.g., Century Hotels v. United States, 952 F.2d 107, 110 n.5 (5th Cir. 1992) (listing numerous objective factors to be considered in alter ego case, including: (1) whether taxpayer expended personal funds for property titled in the name of the entity; (2) whether taxpayer enjoyed the benefit and use of the property; (3) whether a close family relationship existed between taxpayer and title holder of property; (4) whether taxpayer exercised dominion and control over the property; (5) whether the entity maintained its own books and records, including bank accounts; (6) whether funds are transferred between taxpayer and the entity showing commingling of assets; and (7) whether the entity has its own separate existence and identity); Horton Dairy, Inc. v. United States, 986 F.2d 286, 289 (8th Cir. 1993); Loving Saviour Church v. United States, 728 F.2d at 1086 (church was alter ego of taxpayers where taxpayers treated church assets as their own in that their residence, business and farmland comprised church property; insurance was in taxpayer’s name; taxpayer was the minister and trustee and was in control of the church; church funds used to pay personal expenses of taxpayer; close family relationship between church officers and taxpayer; taxpayers transferred property to church for little or no consideration; taxpayers supported by church funds); F.P.P. Enters. v. United States, 830 F.2d at 118 (listing objective factors); Zahra Spiritual Trust v. United States, 910 F.2d at 245; Lemaster v. United States, 891 F.2d 115, 117-119 (6th Cir. 1989); Grant Investment Fund v. IRS, 1993 WL 269617 (9th Cir. 1993); Towe Antique Ford Foundation v. IRS, 791 F. Supp. 1450, 1453 (D. Mont. 1992) (listing objective factors to be considered), aff’d, 999 F.2d 1387 (9th Cir. 1993).

The alter ego doctrine has been applied by numerous courts to a variety of relationships that exist between a taxpayer and a corporation, partnership, trust, proprietorship or individual. See, e.g., Ross Controls, Inc. v. United States, 164 B.R. 721 (successor corporations were alter egos of defunct corporate taxpayer); Today’s Child Learning Center, Inc. v. United States, 40 F. Supp.2d 268, 273-274 (E.D. Pa. 1998) (second corporation was alter ego of taxpayer); United States v. Scherping, 187 F.3d at 801-804 (trusts were alter egos for taxpayers); F.P.P. Enterprises v. United States, 830 F.2d 114, 116-117 (8th Cir. 1987) (trusts were alter egos of taxpayers where the residence was conveyed by the taxpayers to the trust and the taxpayers continued to treat the residence as their own by (1) continuing to live in the residence, and (2) paying the insurance, taxes and mortgage on the residence); United States v. Geissler, 1993 WL 625535 (D. Idaho 1993) (trust was nominee/alter ego of taxpayers where: (1) taxpayers, as trustees maintain an absolute position of trust; (2) taxpayers need not consult anyone else in making decisions for the trust; (3) there is no provision imposing a fiduciary responsibility on trustee; (4) there was no evidence of any consideration for transfer of property from taxpayers to trust; (5) and taxpayers continue to enjoy the benefits of the transferred property); United States v. Gerads, 1993 WL 114411 (D. Minn. 1993) (Trust was alter ego of taxpayers), aff’d, 999 F.2d 1255 (8th Cir. 1993), cert. denied, 510 U.S. 1193 (1994)); Loving Saviour Church v. the United States, 556 F. Supp. at 691-692 (D. S.D.), aff’d, 728 F.2d 1085 (8th Cir.) (unincorporated association, Church, was alter ego of taxpayers); Grant Investment Fund v. IRS, 1 F.3d 1246 (Table), 1993 WL 269617 (9th Cir. 1993) (partnership was an alter ego of taxpayer where: (1) taxpayer manages entity and has complete control over it; (2) taxpayer uses his own assets and partnership assets interchangeably to pay debts; (3) investors in partnership are related to or controlled by taxpayer; (4) partnership made loans to taxpayer, such loans were approved by taxpayer as manager of partnership and taxpayer did not repay the loans; and (5) taxpayer used partnership to discharge personal obligations and for personal gain); Lemaster v. United States, 891 F.2d 115, 117-119 (6th Cir. 1989) (son held to be the alter ego of the taxpayer-father where: taxpayer’s business ceased; a new business was started in the name of taxpayer’s son; new business acquired assets of defunct business; new business was conducted in son’s name, but taxpayer was given power of attorney and controlled the new business).

Furthermore, if the alter ego or a nominee relationship otherwise exists between a taxpayer and another party or entity, the timing of when the tax liabilities arose is legally irrelevant. Stated differently, the timing of the creation of the trust or entity that is found to be an alter ego or nominee has no legal significance. See G.M. Leasing Corp. v. The United States, 429 U.S. at 350-351 (property of taxpayer’s nominee or alter ego is subject to tax lien and levy); In re Richards, 231 B.R. at 578; United States v. Landsberger, 1997 WL 792506 at * 5 (D. Ariz. 1997) (timing of creation of trust has “no import” if it is being used to avoid creditors) (citing G.M. Leasing, supra; F.P.P. Enters. v. United States, 830 F.2d at 118), aff’d, 172 F.3d 60 (9th Cir. 1999); accord United States v. Williams, 581 F. Supp. 756 (N.D. Ga.) (taxpayer’s nominee (his mother) took a title in real property before tax liabilities arose; however because the taxpayer was the true owner of the property, tax lien (which arose after the property was purchased) attached and could be foreclosed on taxpayer’s interest therein); cf. Keefer v. Commissioner, 1993 WL 221066 (Tax Ct. 1993) (trust was a sham even though tax liabilities arose after the creation of trust).

At Selig and Associates, all tax representation is provided by a Federal Tax Practitioner and Licensed Attorney. To schedule a FREE face-to-face consultation, contact Selig & Associates directly at (212) 974-3435. Offices at: 147 West 35th Street, Suite 1602, New York, NY 10001.

Tax Consequences associated with Debt Forgiveness – Nothing New Under the Sun

Let’s travel back in time, 35 Hundred years ago, and I’ll take you to the fertile Crescent, between the Tigris and Euphrates where King Hammurabi, has written his famous law code, which addresses, among other things, debt forgiveness. Specifically, the 48^th provision of the Code of Hammurabi says, “If any one owe a debt for a loan, and a storm prostrates the grain, or the harvest fail, or the grain does not growth for lack of water, in that year he need not give his creditor any grain, he washes his debt-tablet in water and pays no rent for this year.” Well, Hammurabi, be damned, because in 1955 the Supreme Court of the United States held, that Congress in enacting income taxation statutes that comprehend "gains or profits and income derived from any source whatever," intended to tax all gain except that which was specifically exempted. In a nutshell, the court ruled that income is not limited to "the gain derived from capital, from labor, or from labor and capital combined." Or in layman’s parlance, debt forgiveness is taxable! And the seminal tax court case for tax law aficionados is Commissioner v. Glenshaw Glass Co.Accordingly, when an overextended homeowner is underwater, she’s left to drown. 

What is Cancellation of Debt?

If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. When you borrowed the money you were not required to include the loan proceeds in income because you had an obligation to repay the lender. When that obligation is subsequently forgiven, the amount you received as loan proceeds is reportable as income because you no longer have an obligation to repay the lender. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt.

Canceled Debt – Is It Taxable or Not?

A debt includes any indebtedness whether you are personally liable or liable only to the extent of the property securing the debt. Cancellation of all or part of a debt that is secured by property may occur because of a foreclosure, a repossession, a voluntary return of the property to the lender, abandonment of the property, or a principal residence loan modification.

In general, if your debt is canceled, forgiven, or discharged you will receive a Form 1099-C, Cancellation of Debt, and must include the canceled amount in gross income unless you meet an exclusion or exception. If you receive a Form 1099-C but the creditor is continuing to try to collect the debt, the creditor may not have canceled the debt. You should verify with the creditor your specific situation; you might not have cancellation of debt or taxable income.

In general, you must report any taxable amount of a canceled debt for which you are liable as ordinary income from the cancellation of debt, on Form 1040, U.S. Individual Income Tax Return, or Form 1040NRU.S. Nonresident Alien Income Tax Return, and associated schedules, as advised in Publication 4681Canceled Debts, Foreclosures, Repossessions, and Abandonments (for Individuals). You must report the taxable amount of a taxable canceled debt whether or not you receive a Form 1099-C.

Caution:If property secured your debt and the lender takes that property in full or partial satisfaction of your debt, you are treated as having sold that property and may have a taxable gain or loss.The gain or loss on such a deemed sale of your property is an issue separate from whether any cancellation of debt income associated with that same property is includable in gross income. See Publication 544, Sales and Other Dispositions of Assets, and Publication 523, Selling Your Homefor detailed information on reporting gain or loss from repossession, foreclosure or abandonment of property.

Canceled debts that meet the requirements for any of the following exceptions or exclusions are not taxable.

Debt Cancellations or Reductions that Qualify for EXCEPTION to Inclusion in Gross Income:

Amounts specifically excluded from income by law such as gifts, bequests, devises or inheritances

Cancellation of certain qualified student loans

Canceled debt, that if it were paid by a cash basis taxpayer, would be deductible

A qualified purchase price reduction given by a seller

Any Pay-for-Performance Success Payments that reduce the principal balance of your home mortgage under the Home Affordable Modification Program

Canceled Debt that Qualifies for EXCLUSION from Gross Income:

1   Debt canceled in a Title 11 bankruptcy case

2   Debt canceled during insolvency

3   Cancellation of qualified farm indebtedness

4   Cancellation of qualified real property business indebtedness

5   Cancellation of qualified principal residence indebtedness

The exclusion for qualified principal residence indebtedness provides tax relief on canceled debt for many homeowners involved in the mortgage foreclosure crisis currently affecting much of the United States. The exclusion allows taxpayers to exclude up to $2,000,000 ($1,000,000 if married filing separately) of canceled qualified principal residence indebtedness.

Generally, if you exclude canceled debt from income under one of the exclusions listed above, you must reduce certain tax attributes (certain credits, losses, basis of assets, etc.), within limits, by the amount excluded. You must file Form 982Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment), to report the amount qualifying for exclusion and any corresponding reduction of those tax attributes. For cancellation of qualified principal residence indebtedness that you exclude from income, you must only reduce your basis in your principal residence.

If you received a Form 1099-C and the information is incorrect, contact the lender to make corrections. Refer to Publication 4681Canceled Debts, Foreclosures, Repossessions, and Abandonments (for Individuals), for more detailed information regarding taxability of canceled debt, how to report it, and related exceptions and exclusions. Publication 525, Taxable and Nontaxable Income, contains additional information. If you received a Form 1099-A(PDF), Acquisition or Abandonment of Secured Property, review Topic 432for more information.

The importance of filing tax returns

Some people say they work best under pressure and choose to procrastinate on important tasks like filing taxes. Then there are those who simply forget to file by the April 15 deadline – or deliberately avoid doing so.

Everyone makes mistakes, especially when under the stress of gathering documentation, crunching numbers and lowering tax liabilities as much as legally possible. However, avoiding your annual tax returnobligations can result in costly consequences that extend beyond your bank account. 

Late penalties

Considering the importance of filing your tax return, it's fair to expect some degree of penalty for failing to file your taxes. If you are expecting an income tax refund, chances are you won't get the same level of scolding from the Internal Revenue Service that others who owe money can expect to receive.

However, if you fall among the people who owe the government money, it's time to shake a leg and get your tax return in as soon as possible.

The penalty for filing late takes effect immediately following the April 15 deadline and will typically equal 5 percent of the unpaid taxes you owe for every month you delay filing your return, up to a 25 percent cap.

A less hefty penalty of  0.5 to 1 percent of your unpaid taxes per month applies to taxpayers who file by the deadline, but owe taxes and don't pay up. Even if you can't afford your taxes now, it's best to at the very least file your tax return on time. 

Those who both file late andfail to pay for the taxes they owe are charged a maximum penalty of 5 percent of their unpaid taxes for every month the bill is late.

Delayed reimbursement

With spring vacations around the corner, you'll likely want to keep all the money you can. Those who wait beyond the eleventh hour to file taxes and claim their refunds may not only get dinged with a late-filing penalty, but holding up refunds does an equal disservice.

Ever hear people preach about not giving Uncle Sam an "interest-free loan?" By failing to file your taxes, you're only prolonging this financial injustice against your wallet. Essentially, you’re giving up the ability to save or invest that money at a higher return.

Forfeiture of tax refund

Just because you don't owe the IRS money doesn't mean you can keep your refund on hold indefinitely. When you're owed a reimbursement from the government, its in no rush to pay you back. In fact, Uncle Sam will give you three long years after the tax year for which you filed to claim your back tax refund. After this generous window, however, the IRS will consider your unclaimed refund a generous "donation," and you'll be out of your rightful cash.

4. Substitute for return

Individuals who fail to submit their tax return by the deadline (or extension deadline, if applicable) aren't in the clear yet. In fact, the IRS will attempt to contact delinquent tax filers repeatedly and remind them to file their tax returns.

If their efforts fail, the IRS reserves the right to file a substitute for return on behalf of the filer. The form calculates the amount of taxes owed based on taxable income, plus any applicable penalties. Payments made to self-employed individuals are also used in SRF computations, as are dividends paid on investments.

But a substitute for return isn't necessarily conducted in filers' best interest. This course of action does not take into account tax credits and deductionsthat may reduce your taxable income, which means you may be overpaying on your taxes in the end.

If you receive a bill from the IRS indicating that it performed an SRF, you can still file your tax return to claim your deductions and expenses. The IRS usually will make the appropriate corrections.

How to find out what’s been reported 

Before completing your tax return, you might consider obtaining a transcript from the Internal Revenue Service showing all of your wages and income reported to the agency.  You never want to omit income reported to the Internal Revenue Service on your tax return.  Not only will you receive a letter from the IRS several months later requesting additional taxes to be paid, but you will be charged interest and penalties on the amounts omitted.  If you do not know already, the interest and penalties charged by the Internal Revenue Service can be very significant over time, as much as the original tax liability, if not more.  Even more importantly, the omission of income on your tax return might prompt an audit of your tax return by the IRS, a prospect never welcomed by any taxpayer.

Sometimes tax preparers will request a transcript on your behalf in order to confirm that all amounts are complete and agree with what has been received by the IRS, especially if your files appear to be missing documents or are in a state of disarray.   There is always the possibility that you failed to receive 1099 or W-2 forms—particularly if you have changed your address recently—or more likely that you lost or misplaced them.  Consequently, it may be prudent to determine what has been reported to the IRS.  If a tax form has been incorrectly submitted, you can then request that the issuer prepare a corrected 1099 or W-2 and submit it to you and the Internal Revenue Service or Social Security Administration, depending on the type of form.

In order for your tax preparer to request your transcripts, you will need to authorize him or her by filling out and signing a Power of Attorney authorization, Form 2848.  I customarily fax these forms over to the IRS as soon as possible, since it sometimes takes a considerable time for the IRS to process them.  It is advisable to include the past three years on the Power of Attorney (POA) form, in the event of any future need to amend prior years tax returns.

If you request a transcript and desire it to be faxed immediately, you will need to have a separate phone line for your fax machine, since the IRS requires you to be physically present at the fax machine to acknowledge its receipt; otherwise, the IRS will not immediately fax the transcript to you, but will schedule a fax of your transcript sometime within the next 48 hours.  Moreover, unless you speak to a live customer service representative, the IRS's automated telephone menu will process your transcript by mail, which may take anywhere from 10 to 30 days to receive.  So be certain to speak to a live agent and specifically request an immediate faxing if time is of the essence, which ordinarily it is when it comes to preparing a last minute tax return.

To assist you in preparing your tax return, you should request the Wage and Income Transcript, which includes data from Form W-2, Form 1099 series, Form 1098, and Form 5498 series received by the Internal Revenue Service over the past 10 years.  

If you need other information, such as the estimated tax payments that you made, penalties and interest assessed against you or paid by you, interest received from the IRS, adjustments made by the IRS on returns filed, your balance of outstanding tax liabilities, or if extensions or returns were received by the IRS, then you would request an Account Transcript.  Account Transcripts are available for most tax returns for the current processing year and the three prior years.

If you lost a copy of your prior year’s tax return and need it in order to prepare this year’s tax return or to meet the requirements for lending institutions for mortgage verification purposes, you can request a Tax Return Transcript.  The Tax Return Transcript shows most line items contained on the return as it was originally filed, including any accompanying forms and schedules. However, it does not reflect changes made to the account after a return is processed.  

IMPORTANTWhy request a Tax Return Transcript and not a copy of your originally filed tax return from the IRS?  Transcripts can be requested over the phone and received by fax, allowing for immediate receipt if necessary.  And there is no charge for a transcript.  On the other hand, an exact copy of a previously filed and processed tax return and all attachments requires the mailing of Form 4506 along with a payment of $57 for each tax return requested.  While Tax Return Transcripts are only available for the current year and previous three years, copies of tax returns are available for seven years after their filing dates.

A new kind of transcript evolving largely in response to considerable amended return fraud reported by lending and credit institutions is the Record of Account Transcript.  In essence it is a combination of the tax return and tax account transcripts containing the line items on a tax return transcript plus any adjustments. As noted above, the tax return transcript shows items as originally filed without reflecting any changes afterwards, while the tax account transcript shows those changes without including items as reported on the original return.  The Record of Account displays both the originally filed and amended values all on one transcript.  Like the Account and Tax Return Transcripts, it is available for the current year and three prior tax years. 

Be prepared to wait over an hour before you reach someone on the phone at the IRS to take your transcript request as well as to be interrogated by a drill sergeant, confirming your identity.  Besides your name, address, social security number, and date of birth, the IRS will request your filing status of your last submitted tax return and other information; so have last year's tax return on hand.

In addition, if you are filing a joint return and you need a transcript of your spouse's information, he or she will need to speak directly to the IRS agent on the phone to request such information.  Because of the tightening of privacy rules, unless your spouse is present with you, the IRS will not fax your spouse's information without his or her direct confirmation of identity on the phone with you.

When the IRS representative questions you on the phone, be sure that only youanswer his or her questions.  If the agent hears your spouse in the background providing answers to the questions, your call may be terminated on the grounds that you are impersonating the taxpayer.  So muzzle your spouse and be prepared, careful, and vigilant until your request for your individual transcript has been approved and processed by the IRS agent.  Then hand the telephone receiver over to your spouse to request his or her own transcript.

If you do not wish to subject yourself to such an interrogation, wait on the phone for over an hour, or use the automated request line to request a transcript, you can process Form 4506-T Request for Transcript of Tax Return and mail it to the IRS office indicated for your location.  Although the form’s title specifies a transcript for a tax return, you can request all four different transcripts previously discussed on this tax form.  There is no charge for the transcript and you should receive it in 10 business days from the time the Internal Revenue Service receives your request, so allow up to 30 calendar days to receive the transcript.

The Internal Revenue Service has a wealth of information on you in its computerized database.  You may request this information by processing transcript requests either by telephone or mail.  If you need information to prepare a tax return or make a payment, request a transcript over the phone and request that the information be faxed to you.  Be certain to request the appropriate transcript, since there are currently four different kinds, depending upon the information you require.  If you are in doubt as to which transcript you need, you might consider requesting all four, since there is no cost and it is always better to be safe than sorry, especially with the IRS.

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IRC § 601.201 Rulings and Determinations Letters

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§ 601.201  Rulings and  determinations letters.

(a) General practice and definitions.

(1) It is the practice of the Internal Revenue Service to answer inquiries of individuals and organizations, whenever appropriate in the interest of sound tax administration, as to their status for tax purposes and as to the tax effects of their acts or transactions. One of the functions of the National Office of the Internal Revenue Service is to issue rulings in such matters. If a taxpayer's request for a  rulingconcerns an action that may have an impact on the environment, compliance by the Service with the requirements of the National Environmental Policy Act of 1969 (Pub. L. 91-190) may result in delaying issuing the  ruling. Accordingly, taxpayers requesting  rulings should take this factor into  account. District directors apply the statutes, regulations, Revenue  Rulings, and other precedents published in the Internal Revenue Bulletin in the  determination of tax liability, the collection of taxes, and the  issuance of  determination letters in answer to taxpayers' inquiries or requests. For purposes of this section any reference to district director or district office also includes, where appropriate, the Office of the Director, Office of International Operations.

(2) A ruling is a written statement issued to a taxpayer or his authorized representative by the National Office which interprets and applies the tax laws to a specific set of facts.  Rulings are issued only by the National Office. The  issuance of  rulings is under the general supervision of the Assistant Commissioner (Technical) and has been largely redelegated to the Director, Corporation Tax Division and Director, Individual Tax Division.

(3) A determination letter is a written statement issued by a district director in response to a written inquiry by an individual or an organization that applies to the particular facts involved, the principles and precedents previously announced by the National Office. A determination letter is issued only where a  determination can be made on the basis of clearly established rules as set forth in the statute, Treasury decision, or regulation, or by a  ruling, opinion, or court decision published in the Internal Revenue Bulletin. Where such a determination cannot be made, such as where the question presented involves a novel issue or the matter is excluded from the jurisdiction of a district director by the provisions of paragraph (c) of this section, a  determination letter will not be issued. However, with respect to determination letters in the pension trust area, see paragraph (o) of this section. 

(4) An opinion letter is a written statement issued by the National Office as to the acceptability of the form of a master or prototype plan and any related trust or  custodial account under sections 401 and 501(a) of the Internal Revenue Code of 1954.

(5) An information letter is a statement issued either by the National Office or by a district director which does no more than call attention to a well-established interpretation or principle of tax law, without applying it to a specific set of facts. An information letter may be issued when the nature of the request from the individual or the organization suggests that it is seeking general information, or where the request does not meet all the requirements of paragraph (e) of this section, and it is believed that such general information will assist the individual or organization.

(6) A Revenue Ruling is an official interpretation by the Service which has been published in the Internal Revenue Bulletin. Revenue Rulingsare issued only by the National Office and are published for the information and guidance of taxpayers, Internal Revenue Service officials, and others concerned.

(7) A closing agreement, as the term is used herein, is an agreement between the Commissioner of Internal Revenue or his delegate and a taxpayer with respect to a specific issue or issues entered into pursuant to the authority contained in section 7121 of the Internal Revenue Code. Such a  closing agreement is based on a  ruling which has been signed by the Commissioner or his delegate and in which it is indicated that a  closing agreement will be entered into on the basis of the holding of the  ruling letter. Closing agreements are final and conclusive except upon a showing of  fraud, malfeasance, or misrepresentation of material fact. They may be entered into where it is advantageous to have the matter permanently and conclusively closed, or where a taxpayer can show good and sufficient reasons for an agreement and the Government will sustain no disadvantage by its consummation. In appropriate cases, taxpayers may be required to enter into a  closing agreement as a condition to the  issuance of a  ruling. Where in a single case, closing agreements are requested on behalf of each of a number of taxpayers, such agreements are not entered into if the number of such taxpayers exceed 25. However, in a case where the issue and holding are identical as to all of the taxpayers and the number of taxpayers is in excess of 25, a Mass  Closing Agreement will be entered into with the taxpayer who is authorized by the others to represent the entire group. See, for example, Rev. Proc. 78-15, 1978-2 C.B. 488, and Rev. Proc. 78-16, 1978-2 C.B. 489.

(b) Rulings issued by the National Office.

(1) In income and gift tax matters and matters involving taxes imposed under Chapter 42 of the Code, the National Office issues rulings on prospective transactions and on completed transactions before the return is filed. However,  rulings will not ordinarily be issued if the identical issue is present in a return of the taxpayer for a prior year which is under active examination or audit by a district office, or is being considered by a  branch office of the Appellate Division. The National Office issues  rulings involving the exempt status of organizations under section 501 or 521 of the Code, only to the extent provided in paragraph (n) of this section, Revenue  Procedure 72-5, Internal Revenue Bulletin No. 1972-1, 19, and Revenue  Procedure 68-13, C.B. 1968-1, 764. The National Office issues  rulings as to the foundation status of certain organizations under sections 509(a) and 4942(j) (3) of the Code only to the extent provided in paragraph (r) of this section. The National Office issues  rulings involving qualification of plans under section 401 of the Code only to the extent provided in paragraph (o) of this section. The National Office issues  opinion letters as to the acceptability of the form of master or prototype plans and any related trusts or custodial accounts under sections 401 and 501(a) of the Code only to the extent provided in paragraphs (p) and (q) of this section. The National Office will not issue  rulings with respect to the replacement of involuntarily converted property, even though replacement has not been made, if the taxpayer has filed a return for the taxable year in which the property was converted. However, see paragraph (c)(6) of this section as to the authority of district directors to issue  determination letters in this connection.

(2) In estate tax matters, the National Office issues rulings with respect to transactions affecting the estate tax of a decedent before the estate tax return is filed. It will not rule with respect to such matters after the estate tax return has been filed, nor will it rule on matters relating to the  application of the estate tax to property or the estate of a living  person.

(3) In employment and excise tax matters (except taxes imposed under Chapter 42 of the Code), the National Office issues rulings with respect to prospective transactions and to completed transactions either before or after the return is filed. However, the National Office will not ordinarily rule with respect to an issue, whether related to a prospective or a completed transaction, if it knows or has reason to believe that the same or an identical issue is before any field office (including any  branch office of the Appellate Division) in connection with an examination or audit of the liability of the same taxpayer for the same or a prior period.

(4) The Service will not issue rulings to business, trade, or industrial associations or to other similar groups relating to the  application of the tax laws to members of the group. However,  rulings may be issued to such groups or associations relating to their own tax status or liability provided such tax status or liability is not an issue before any field office (including any  branch office of the Appellate Division) in connection with an examination or audit of the liability of the same taxpayer for the same or a prior period.

(5) Pending the adoption of regulations (either temporary or final) that reflect the provisions of any Act, consideration will be given to the issuance of  rulings under the conditions set forth below.

(i) If an inquiry presents an issue on which the answer seems to be clear from an application of the provisions of the statute to the facts described, a  ruling will be issued in accordance with usual procedures.

(ii) If an inquiry presents an issue on which the answer seems reasonably certain but not entirely free from doubt, a ruling will be issued only if it is established that a business emergency requires a  ruling or that unusual hardship will result from failure to obtain a  ruling.

(iii) If an inquiry presents an issue that cannot be reasonably resolved prior to the issuance of regulations, a  ruling will not be issued.

(iv) In any case in which the taxpayer believes that a business emergency exists or that an unusual hardship will result from failure to obtain a ruling, he should submit with the request a separate letter setting forth the facts necessary for the Service to make a determination in this regard. In this connection, the Service will not deem a “business emergency” to result from circumstances within the control of the taxpayer such as, for example, scheduling within an inordinately short time the closing date for a transaction or a meeting of the board of directors or the shareholders of a corporation.

(c) Determination letters issued by district directors.

(1) In income and gift tax matters, and in matters involving taxes imposed under Chapter 42 of the Code, district directors issue determination letters in response to taxpayers' written requests submitted to their offices involving completed transactions which affect returns over which they have audit jurisdiction, but only if the answer to the question presented is covered specifically by statute, Treasury Decision or regulation, or specifically by a  ruling, opinion, or court decision published in the Internal Revenue Bulletin. A  determination letterwill not usually be issued with respect to a question which involves a return to be filed by the taxpayer if the identical question is involved in a return or returns already filed by the taxpayer. District directors may not issue  determination letters as to the tax consequence of prospective or proposed transactions, except as provided in subparagraphs (5) and (6) of this paragraph.

(2) In estate and gift tax matters, district directors issue determination letters in response to written requests submitted to their offices affecting the estate tax returns of decedents that will be audited by their offices, but only if the answer to the questions presented are specifically covered by statute, Treasury Decision or regulation, or by a  ruling, opinion, or court decision published in the Internal Revenue Bulletin. District directors will not issue  determination letters relating to matters involving the  application of the estate tax to property or the estate of a living  person.

(3) In employment and excise tax matters (except excise taxes imposed under Chapter 42 of the Code), district directors issue determination letters in response to written requests from taxpayers who have filed or who are required to file returns over which they have audit jurisdiction, but only if the answers to the questions presented are specifically covered by statute, Treasury Decision or regulation, or a  ruling, opinion, or court decision published in the Internal Revenue Bulletin. Because of the impact of these taxes upon the business operation of the taxpayer and because of special problems of administration both to the Service and to the taxpayer, district directors may take appropriate action in regard to such requests, whether they relate to completed or prospective transactions or returns previously filed or to be filed.

(4) Notwithstanding the provisions of subparagraphs (1), (2), and (3), of this paragraph, a district director will not issue a determination letter in response to an inquiry which presents a question specifically covered by statute, regulations, rulings, etc., published in the Internal Revenue Bulletin, where  (i) it appears that the taxpayer has directed a similar inquiry to the National Office,  (ii) the identical issue involving the same taxpayer is pending in a case before the Appellate Division,  (iii) the  determination letter is requested by an industry, trade association, or similar group, or  (iv) the request involves an industrywide problem. Under no circumstances will a district director issue a determination letter unless it is clearly indicated that the inquiry is with regard to a taxpayer or taxpayers who have filed or are required to file returns over which his office has or will have audit jurisdiction. Notwithstanding the provisions of subparagraph (3) of this paragraph, a district director will not issue a  determination letter on an employment tax question when the specific question involved has been or is being considered by the Central Office of the Social Security Administration. Nor will district directors issue determination letters on excise tax questions if a request is for a  determination of a constructive sales price under section 4216(b) or 4218(e) of the Code. However, the National Office will issue  rulings in this area. See paragraph (d)(2) of this section.

(5) District directors issue determination letters as to the qualification of plans under sections 401 and 405(a) of the Code, and as to the exempt status of related trusts under section 501 of the Code, to the extent provided in paragraphs (o) and (q) of this section. Selected district directors also issue  determination letters as to the qualification of certain organizations for exemption from Federal income tax under sections 501 and 521 of the Code, to the extent provided in paragraph (n) of this section. Selected district directors also issue  determination letters as to the qualification of certain organizations for foundation status under sections 509(a) and 4942(j)(3) of the Code, to the extent provided in paragraph (r) of this section.

(6) District directors issue determination letters with regard to the replacement of involuntarily converted property under section 1033 of the Code even though the replacement has not been made, if the taxpayer has filed his income tax return for the year in which the property was involuntarily converted.

(7) A request received by a district director with respect to a question involved in an income, estate, or gift tax return already filed will, in general, be considered in connection with the examination of the return. If response is made to such inquiry prior to an examination or audit, it will be considered a tentative finding in any subsequent examination or audit of the return.

(d) Discretionary authority to issue rulings and determination letters.

(1) It is the practice of the Service to answer inquiries of individuals and organizations, whenever appropriate in the interest of sound tax administration, as to their status for tax purposes and the tax effect of their acts or transactions.

(2) There are, however, certain areas where, because of the inherently factual nature of the problem involved, or for other reasons, the Service will not issue rulings or  determination letters. A  ruling or  determination letter is not issued on alternative plans of proposed transactions or on hypothetical situations. A specific area or a list of these areas is published from time to time in the Internal Revenue Bulletin. Such list is not all inclusive since the Service may decline to issue  rulings or  determination letters on other questions whenever warranted by the facts or circumstances of a particular case. The National Office and district directors may, when it is deemed appropriate and in the best interest of the Service, issue  information letters calling attention to well-established principles of tax law.

(3) The National Office will issue rulings in all cases on prospective or future transactions when the law or regulations require a  determinationof the effect of a proposed transaction for tax purposes, as in the case of a transfer coming within the provisions of sections 1491 and 1492 of the Code, or an exchange coming within the provisions of section 367 of the Code. The National Office will issue  rulings in all cases involving the  determination of a constructive sales price under section 4216(b) or 4218(e) of the Code.

(e) Instructions to taxpayers.

(1) A request for a ruling or a  determination letter is to be submitted in duplicate if  (i) more than one issue is presented in the request or  (ii)a  closing agreement is requested with respect to the issue presented. There shall accompany the request a declaration, in the following form: “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 facts presented in support of the requested  ruling or  determination letter are true, correct, and complete”. The declaration must accompany requests that are postmarked or hand delivered to the Internal Revenue Service after October 31, 1976. The declaration must be signed by the person or  persons on whose behalf the request is made.

(2) Each request for a ruling or a  determination letter must contain a complete statement of all relevant facts relating to the transaction. Such facts include names, addresses, and taxpayer identifying numbers of all interested parties; the location of the district office that has or will have audit jurisdiction over the return or report of each party; a full and precise statement of the business reasons for the transaction; and a carefully detailed description of the transaction. In addition, true copies of all contracts, wills, deeds, agreements, instruments, and other documents involved in the transaction must be submitted with the request. However, relevant facts reflected in documents submitted must be included in the taxpayer's statement and not merely incorporated by reference, and must be accompanied by an analysis of their bearing on the issue or issues, specifying the pertinent provisions. (The term “all interested parties” is not to be construed as requiring a list of all shareholders of a widely held corporation requesting a  ruling relating to a reorganization, or a list of employees where a large number may be involved in a plan.) The request must contain a statement whether, to the best of the knowledge of the taxpayer or his representative, the identical issue is being considered by any field office of the Service in connection with an active examination or audit of a tax return of the taxpayer already filed or is being considered by a  branch office of the Appellate Division. Where the request pertains to only one step of a larger integrated transaction, the facts, circumstances, etc., must be submitted with respect to the entire transaction. The following list contains references to revenue  procedures for advance  ruling requests under certain sections of the Code.

(i) For ruling requests under section 103 of the Code, see Rev. Proc. 79-4, 1979-1 C.B. 483, as amplified by Rev. Proc. 79-12, 1979-1 C.B. 492. Revenue  Procedure 79-12 sets forth  procedures for submitting  ruling requests to which sections 103 and 7478 of the Code apply.

(ii) For ruling requests under section 367 of the Code, see Rev. Proc. 68-23, 1968-1 C.B. 821, as amplified by Rev. Proc. 76-20, 1976-1 C.B. 560, Rev. Proc. 77-5, 1977-1 C.B. 536, Rev. Proc. 78-27, 1978-2 C.B. 526, and Rev. Proc. 78-28, 1978-2 C.B. 526. Revenue  Procedure68-23 contains guidelines for taxpayers and their representatives in connection with issuing  rulings under section 367. Revenue  Procedure76-20 explains the effect of Rev. Rul. 75-561, 1975-2 C.B. 129, on transactions described in section 3.03(1)(c) of Rev. Proc. 68-23. Revenue  Procedure 77-5 sets forth  procedures for submitting  ruling requests under section 367, and the administrative remedies available to a taxpayer within the Service after such  rulings have been issued. Revenue  Procedure 78-27 relates to the notice requirement set forth in the section 367(b) temporary regulations. Revenue  Procedure 78-28 relates to the timely filing of a section 367(a)  ruling request.

(iii) For ruling requests under section 351 of the Code, see Rev. Proc. 73-10, 1973-1 C.B. 760, and Rev. Proc. 69-19, 1969-2 C.B. 301. Revenue  Procedure 73-10 sets forth the information to be included in the  ruling request. Revenue  Procedure 69-19 sets forth the conditions and circumstances under which an advance  ruling will be issued under section 367 of the Code that an agreement which purports to furnish technical know-how in exchange for stock is a transfer of property within the meaning of section 351.

(iv) For ruling requests under section 332, 334(b)(1), or 334(b)(2) of the Code, see Rev. Proc. 73-17, 1973-2 C.B. 465. Revenue  Procedure73-17 sets forth the information to be included in the  ruling request.

(v) See Rev. Proc. 77-30, 1977-2 C.B. 539, and Rev. Proc. 78-18, 1978-2 C.B. 491, relating to rules for the issuance of an advance  rulingthat a proposed sale of employer stock to a related qualified defined contribution plan of deferred compensation will be a sale of the stock rather than a distribution of property.

(vi) For ruling requests under section 302 or section 311 of the Code, see Rev. Proc. 73-35, 1973-2 C.B. 490. Revenue  Procedure 73-35 sets forth the information to be included in the  ruling request.

(vii) For ruling requests under section 337 of the Code (and related section 331) see Rev. Proc. 75-32, 1975-2 C.B. 555. Revenue Procedure 75-32 sets forth the information to be included in the  ruling request.

(viii) For ruling requests under section 346 of the Code (and related sections 331 and 336), see Rev. Proc. 73-36, 1973-2 C.B. 496. Revenue  Procedure 73-36 sets forth the information to be included in the  ruling request.

(ix) For ruling requests under section 355 of the Code, see Rev. Proc. 75-35, 1975-2 C.B. 561. Revenue  Procedure 75-35 sets forth the information to be included in the  ruling request.

(x) For ruling requests under section 368(a)(1)(E) of the Code, see Rev. Proc. 78-33, 1978-2 C.B. 532. Revenue  Procedure 78-33 sets forth the information to be included in the  ruling request.

(xi) For ruling requests concerning the classification of an organization as a limited  partnership where a corporation is the sole general partner, see Rev. Proc. 72-13, 1972-1 C.B. 735. See also Rev. Proc. 74-17, 1974-1 C.B. 438, and Rev. Proc. 75-16, 1975-1 C.B. 676. Revenue  Procedure 74-17 announces certain  operating rules of the Service relating to the  issuance of advance  ruling letters concerning the classification of organizations formed as limited partnerships. Revenue  Procedure 75-16 sets forth a checklist outlining required information frequently omitted from requests for  rulings relating to classification of organizations for Federal tax purposes.

(xii) For ruling requests concerning the creditability of a foreign tax under section 901 or 903 of the Code, see Rev. Rul. 67-308, 1967-2 C.B. 254, which sets forth requirements for establishing that translations of foreign law are satisfactory as evidence for purposes of determining the creditability of a particular foreign tax.

Original documents should not be submitted because documents and exhibits become a part of the Internal Revenue Service file which cannot be returned. If the request is with respect to a corporate distribution, reorganization, or other similar or related transaction, the corporate balance sheet nearest the date of the transaction should be submitted. (If the request relates to a prospective transaction, the most recent balance sheet should be submitted.) In the case of requests for rulings or  determination letters, other than those to which section 6104 of the Code applies, postmarked or hand delivered to the Internal Revenue Service after October 31, 1976, there must accompany such requests a statement, described in paragraph (5) of this paragraph, of proposed deletions pursuant to section 6110(c) of the Code. Such statement is not required if the request is to secure the consent of the Commissioner with respect to the adoption of or change in accounting or funding periods or methods pursuant to section 412, 442, 446(e), or 706 of the Code. If, however, the person seeking the consent of the Commissioner receives from the Internal Revenue Service a notice that proposed deletions should be submitted because the resulting ruling will be open to public inspection under section 6110, the statement of proposed deletions must be submitted within 20 days after such notice is mailed.

(3) As an alternative procedure for the  issuance of  rulings on prospective transactions, the taxpayer may submit a summary statement of the facts he considers controlling the issue, in addition to the complete statement required for  ruling requests by subparagraph (2) of this paragraph. Assuming agreement with the taxpayer's summary statement, the Service will use it as the basis for the  ruling. Any taxpayer wishing to adopt this  procedure should submit with the request for ruling:

(i) A complete statement of facts relating to the transaction, together with related documents, as required by subparagraph (2) of this paragraph; and

(ii) A summary statement of the facts which he believes should be controlling in reaching the requested conclusion.

Where the taxpayer's statement of controlling facts is accepted, the ruling will be based on those facts and only this statement will ordinarily be incorporated in the  ruling letter. It is emphasized, however, that:

(a) This procedure for a “two-part”  ruling request is elective with the taxpayer and is not to be considered a required substitute for the regular  procedure contained in paragraphs  (a) through (m) of this section;

(b) Taxpayers' rights and responsibilities are the same under the “two-part” ruling request  procedure as those provided in paragraphs (a) through (m) of this section;

(c) The Service reserves the right to rule on the basis of a more complete statement of facts it considers controlling and to seek further information in developing facts and restating them for ruling purposes; and

(d) The “two-part” ruling request  procedure will not apply where it is inconsistent with other  procedures applicable to specific situations such as: Requests for permission to change accounting method or period;  application for recognition of exempt status under section 501 or 521; or  rulings on employment tax status.

(4) If the taxpayer is contending for a particular determination, he must furnish an explanation of the grounds for his contentions, together with a statement of relevant authorities in support of his views. Even though the taxpayer is urging no particular  determination with regard to a proposed or prospective transaction, he must state his views as to the tax results of the proposed action and furnish a statement of relevant authorities to support such views.

(5) In order to assist the Internal Revenue Service in making the deletions, required by section 6110(c) of the Code, from the text of rulingsand  determination letters, which are open to public inspection pursuant to section 6110(a) of the Code, there must accompany requests for such  rulings or  determination letters either a statement of the deletions proposed by the  person requesting the  ruling or  determination letterand the statutory basis for each proposed deletion, or a statement that no information other than names, addresses, and taxpayer identifying numbers need be deleted. Such statement shall be made in a separate document. The statement of proposed deletions shall be accompanied by a copy of the request for a  ruling or  determination letter and supporting documents, on which shall be indicated, by the use of brackets, the material which the  person making such request indicates should be deleted pursuant to section 6110(c) of the Code. The statement of proposed deletions shall indicate the statutory basis, under section 6110(c) of the Code, for each proposed deletion. The statement of proposed deletions shall not appear or be referred to anywhere in the request for a  ruling of  determination letter. If the  person making the request decides to request additional deletions pursuant to section 6110(c) of the Code prior to the time the  ruling or  determination letter is issued, additional statements may be submitted.

(6) If the request is with respect to the qualification of a plan under section 401 or 405(a) of the Code, see paragraphs (o) and (p) of this section. If the request is with respect to the qualification of an organization for exemption from Federal income tax under section 501 or 521 of the Code, see paragraph (n) of this section, Revenue  Procedure 72-5, Internal Revenue Bulletin No. 1972-1, 19, and Revenue  Procedure68-13, C.B. 1968-1, 764.

(7) A request by or for a taxpayer must be signed by the taxpayer or his authorized representative. If the request is signed by a representative of the taxpayer, or if the representative is to appear before the Internal Revenue Service in connection with the request, he must either be:

(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 files with the service a written declaration that he is currently qualified as an attorney and he is authorized to represent the principal,

(ii) A certified public accountant who is duly qualified to practice in any State, possession, territory, Commonwealth, or the District of Columbia, and who files with the Service a written declaration that he is currently qualified as a certified public accountant and he is authorized to represent the principal, or

(iii) A person, other than an attorney or certified public accountant, enrolled to practice before the Service, and who files with the Service a written declaration that he is currently enrolled (including in the declaration either his enrollment number or the expiration date of his enrollment card) and that he is authorized to represent the principal. (See Treasury Department Circular No. 230, as amended, C.B. 1966-2, 1171, for the rules on who may practice before the Service. See § 601.503(c) for the statement required as evidence of recognition as an enrollee.)

(8) A request for a ruling or an  opinion letter by the National Office should be addressed to the Commissioner of Internal Revenue, Attention: T:FP:T. Washington, DC 20224. A request for a  determination letter should be addressed to the district director of internal revenue whose office has or will have audit jurisdiction of the taxpayer's return. See also paragraphs (n) through (q) of this section.

(9) Any request for a ruling or  determination letter that does not comply with all the provisions of this paragraph will be acknowledged, and the requirements that have not been met will be pointed out. If a request for a  ruling lacks essential information, the taxpayer or his representative will be advised that if the information is not forthcoming within 30 days, the request will be closed. 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 of the receipt of the essential information. Priority treatment of such request will be granted only in rare cases upon the approval of the division director.

(10) A taxpayer or his representative who desires an oral discussion of the issue or issues involved should indicate such desire in writing when filing the request or soon thereafter in order that the conference may be arranged at that stage of consideration when it will be most helpful.

(11) Generally, prior to issuing the ruling or  determination letter, the National Office or district director shall inform the  person requesting such  ruling or  determination letter orally or in writing of the material likely to appear in the  ruling or  determination letter which such  personproposed be deleted but which the Internal Revenue Service determines should not be deleted. If so informed, the person requesting the ruling or  determination letter may submit within 10 days any further information, arguments or other material in support of the position that such material be deleted. The Internal Revenue Service will attempt, if feasible, to resolve all disagreements with respect to proposed deletions prior to the issuance of the  ruling or  determination letter. However, in no event shall the  person requesting the  ruling or determination letter have the right to a conference with respect to resolution of any disagreements concerning material to be deleted from the text of the  ruling or  determination letter, but such matters may be considered at any conference otherwise scheduled with respect to the request.

(12) It is the practice of the Service to process requests for rulings, opinion letters, and determination letters in regular order and as expeditiously as possible. Compliance with a request for consideration of a particular matter ahead of its regular order, or by a specified time, tends to delay the disposition of other matters. Requests for processing ahead of the regular order, made in writing in a separate letter submitted with the request or subsequent thereto and showing clear need for such treatment, will be given consideration as the particular circumstances warrant. However, no assurance can be given that any letter will be processed by the time requested. For example, the scheduling of a closing date for a transaction or a meeting of the Board of Directors or shareholders of a corporation without due regard to the time it may take to obtain a  ruling,  opinion letter, or  determination letter will not be deemed sufficient reason for handling a request ahead of its regular order. Neither will the possible effect of fluctuation in the market price of stocks on a transaction be deemed sufficient reason for handling a request out of order. Requests by telegram will be treated in the same manner as requests by letter. Rulings, opinion letters, and determination letters ordinarily will not be issued by telegram. A taxpayer or his representative desiring to obtain information as to the status of his case may do so by contacting the appropriate division in the office of the Assistant Commissioner (Technical).

(13) The Director, Corporation Tax Division, has responsibility for issuing rulings in areas involving the  application of Federal income tax to taxpayers; those involving income tax conventions or treaties with foreign countries; those involving depreciation, depletion, and valuation issues; and those involving the taxable status of exchanges and distributions in connection with corporate reorganizations, organizations, liquidations, etc.

(14) The Director, Individual Tax Division, has responsibility for issuing rulings with respect to the  application of Federal income tax to taxpayers (including individuals, partnerships, estates and trusts); areas involving the  application of Federal estate and gift taxes including estate and gift tax conventions or treaties with foreign countries; areas involving certain excise taxes; the provisions of the Internal Revenue Code dealing with  procedure and administration; and areas involving employment taxes.

(15) A taxpayer or the taxpayer's representative desiring to obtain information as to the status of the taxpayer's case may do so by contacting the following offices with respect to matters in the areas of their responsibility: