Part 4. Examining Process Chapter 10. Examination of Returns Section 20. Requesting Audit, Tax Accrual, or Tax Reconciliation Workpapers

4.10.20 Requesting Audit, Tax Accrual, or Tax Reconciliation Workpapers

Manual Transmittal

May 04, 2017

Purpose

(1) This transmits revised IRM 4.10.20, Examination of Returns, Requesting Audit, Tax Accrual, or Tax Reconciliation Workpapers.

Material Changes

(1) IRM 4.10.20.1 was retitled and revised to add program scope and objectives.

(2) Definitions of key terms were not changed, but were moved to a separate subsection 4.10.20.1.1, Definitions.

(3) A table of commonly-used acronyms was added to IRM 4.10.20.1.2.

(4) Policies for requesting tax reconciliation workpapers and audit or tax accrual workpapers were separated and placed in subsections 4.10.20.2 and 4.10.20.3 respectively.

(5) Modifications to the policy of restraint as described in Announcement 2010-76, 2010-41 IRB 432 were added to IRM 4.10.20.2.

(6) Added clarification to IRM 4.10.20.4 that examiners should follow IDR procedures in IRM 4.46.4.

(7) Summons procedures for tax accrual workpapers under the unusual circumstances standard and involving listed transactions were separated and placed in subsections 4.10.20.4.1.1 and 4.10.20.4.1.2 , respectively.

(8) References to "Large and Mid-Size Business" or "LMSB" were changed to "Large Business and International" or "LB&I" , respectively.

(9) Website addresses and hyperlinks were updated.

(10) Editorial changes made throughout.

Effect on Other Documents

Audience

Effective Date

IRM 4.10.20 dated January 15, 2005 is superseded.LB&I, SB/SE, TE/GE, Appeals examiners(05-04-2017)

Keith Henley

Acting Director, Compliance Planning and Analytics

Large Business and International Division

4.10.20.1 (05-04-2017) Program Scope and Objectives Purpose: This IRM states the policy and guidelines that examiners must use when requesting taxpayer workpapers, such as: Audit workpapers

Tax accrual workpapers

Tax reconciliation workpapers Publicly traded corporations and other large collectively owned entities typically use these types of workpapers. The Service has different policies for seeking access to each of these types of documents. Audience: The primary users of this IRM are examiners in all divisions, Appeals officers and attorneys. Note: These provisions do not apply in cases being investigated by Criminal Investigation. Policy Owner: Commissioner, Large Business and International Division (LB&I) Program Owner: Office of Tax Shelter Analysis (OTSA), LB&I Related Resource: See the Tax Accrual Workpapers Frequently Asked Questions on IRS.gov at https://www.irs.gov/businesses/corporations/tax-accrual-workpapers-frequently-asked-questions. 4.10.20.1.1 (07-12-2004) Definitions Tax Reconciliation Workpapers Tax reconciliation workpapers are used in assembling and compiling financial data preparatory to placement on a tax return. These workpapers typically include final trial balances for each entity and a schedule of consolidating and adjusting entries. They include information used to trace financial information to the tax return. Any tax return preparation documents that reconcile net income per books or financial statements to taxable income are also tax reconciliation workpapers. Tax reconciliation workpapers do not become tax accrual workpapers when they are used in the preparation of tax accrual workpapers or are attached to tax accrual workpapers. Preexisting documents that a taxpayer, the taxpayer’s accountant, or the taxpayer’s independent auditor consults, refers to, or relies upon in making evaluations or decisions regarding the tax reserves or in performing an audit are not themselves considered tax accrual workpapers or audit workpapers, even though the taxpayer, the taxpayer’s accountant, or independent auditor may store such documents with the tax accrual workpapers or audit workpapers. Tax Accrual Workpapers The term "tax accrual workpapers" refers to those audit workpapers, whether prepared by the taxpayer, the taxpayer’s accountant, or the independent auditor, that relate to the tax reserve for current, deferred and potential or contingent tax liabilities, however classified or reported on audited financial statements, and to footnotes disclosing those tax reserves on audited financial statements. These workpapers reflect an estimate of a company’s tax liabilities and may also be referred to as the tax pool analysis, tax liability contingency analysis, tax cushion analysis, or tax contingency reserve analysis. The name given the workpapers by the taxpayer, the taxpayer’s accountant, or the independent auditor is not determinative. Tax accrual workpapers typically include determinations and related documentation of estimates of potential or contingent tax liabilities related to tax positions taken by the taxpayer on certain transactions. In addition, there may be an audit trail and/or complete explanation of the transactions. There may also be information on whether there was reliance on outside legal advice; an assessment of the taxpayer’s position and potential for sustention; references to promotional materials; and comments on unwritten agreements, confidentiality agreements, restitution agreements, contingency fees, expectations, and other material facts surrounding the transactions. The workpapers may include documents written by the taxpayer’s employees and officers describing or evaluating the tax strategies. The scope and quality of the workpapers will vary. The total amount of the reserve established on a company’s general ledger for all contingent tax liabilities of the company for a specific reporting period is not considered a part of the company’s tax accrual workpapers. An examiner may ask a taxpayer about the existence and the total amount of a reserve for all contingent tax liabilities as a matter of routine examination procedure, without a showing of unusual circumstances and without seeking executive approval for the request. A request to reveal the existence or amount of a tax reserve established for any specific known or unknown transaction, however, is the same as asking for a description of a portion of the contents of the tax accrual workpapers. Requests for a description of the contents of the tax accrual workpapers are covered by the same policy of restraint as requests for the actual documents that make up the tax accrual workpapers. Audit Workpapers These are workpapers created by or for the independent auditor. They are retained by the independent auditor and may be shared with the taxpayer. These workpapers include information about the procedures followed, the tests performed, the information obtained, and the conclusions reached pertinent to the independent auditor’s review of a taxpayer’s financial statements. Audit workpapers may include work programs, analyses, memoranda, letters of confirmation and representation, abstracts of company documents, and schedules or commentaries prepared or obtained by the auditor. These workpapers provide important support for the independent auditor’s opinion as to the fairness of the presentation of the financial statements, in conformity with generally accepted auditing standards and generally accepted accounting principles. 4.10.20.1.2 (05-04-2017) Acronyms The table below lists commonly used acronyms and their definitions: Acronym Definition CFR Code of Federal Regulations IDR Information Document Request OTSA Office of Tax Shelter Analysis P&A Associate Chief Counsel (Procedure and Administration) UTP Uncertain Tax Position

4.10.20.2 (05-04-2017) Service Policy for Requesting Tax Reconciliation Workpapers Tax reconciliation workpapers should be requested as a routine matter at the beginning of an examination. Ordinarily, tax reconciliation workpapers are prepared and provided by the taxpayer. If these workpapers are unavailable from the taxpayer, access will be sought from the taxpayer’s accountants. Taxpayers may redact the following information from any copies of tax reconciliation workpapers relating to the preparation of Schedule UTP, Uncertain Tax Position Statement, they are asked to produce during an examination: Working drafts, revisions, or comments concerning the concise description of tax positions reported on Schedule UTP; The amount of any reserve related to a tax position reported on Schedule UTP; and Computations determining the ranking of tax positions to be reported on Schedule UTP or the designation of a tax position as a Major Tax Position. Other than requiring the disclosure of information on the schedule, the requirement to file Schedule UTP does not affect the policy of restraint.

4.10.20.3 (07-12-2004) Service Policy for Requesting Audit or Tax Accrual Workpapers The general standard for requests for audit or tax accrual workpapers is the unusual circumstances standard. This standard applies to all requests for audit workpapers, requests for tax accrual workpapers that do not involve a listed transaction as defined in 26 CFR 1.6011-4, and to any request for tax accrual workpapers involving a listed transaction for returns filed on or before February 28, 2000. For the standard for requests for tax accrual workpapers involving a listed transaction: For returns filed after February 28, 2000, but before July 1, 2002, see IRM 4.10.20.3.2.2. For returns filed on or after July 1, 2002, see IRM 4.10.20.3.2.3. 4.10.20.3.1 (07-12-2004) Unusual Circumstances Standard In unusual circumstances (as defined in paragraph (2) below), the Service may request audit or tax accrual workpapers. Examiners should keep in mind that the taxpayer’s records are the primary source of factual data to support the tax return. Audit or tax accrual workpapers should normally be sought only when such factual data cannot be obtained from the taxpayer’s records or from available third parties, and then only as a collateral source for factual data. Audit or tax accrual workpapers should be requested with discretion and not as a matter of standard examining procedure. This request should generally be made first to the taxpayer, but may be directed to the taxpayer, the taxpayer’s accountant, the independent auditor, or all three, based on the Service’s determination as to the location of the workpapers sought. The request should be limited to the portion of the workpapers that is material and relevant to the examination. Whether an item is considered to be material is based upon the examiner’s judgment and an evaluation of the facts and circumstances of the case. Unusual circumstances for this purpose exist under the following conditions: A specific issue has been identified by the examiner for which there exists a need for additional facts; The examiner has sought from the taxpayer and available third parties all the facts known to them relating to the identified issue; and The examiner has sought a supplementary analysis (not necessarily contained in the workpapers) of facts relating to the identified issue and the examiner has performed a reconciliation of the taxpayer’s Schedule M-1 or M-3 as it pertains to the identified issue. 4.10.20.3.2 (07-12-2004) Requests for Tax Accrual Workpapers Involving Listed Transactions Although the Supreme Court recognized the Service’s right to obtain tax accrual workpapers in United States v. Arthur Young & Co., 465 U.S. 805 (1984), the Service announced that it would continue its policy of restraint and would not request tax accrual workpapers as a standard examination technique. Announcement 84-46, 1984-18 IRB 18. In 2002, the Service modified its policy of restraint with respect to tax accrual workpapers. In general, the modified policy applies to returns filed by taxpayers claiming benefits from listed transactions. Announcement 2002-63, 2002-2 C.B. 72. A listed transaction is defined in 26 CFR 1.6011-4 , and subsection (b)(2) defines listed transactions to include substantially similar transactions. The policy governing requests for tax accrual workpapers involving listed transactions varies according to when the tax return was filed. 4.10.20.3.2.1 (07-12-2004) Returns Filed on or Before February 28, 2000 The modified policy does not apply to examination of returns filed on or before February 28, 2000. See Announcement 2002-63 and 26 CFR 1.6011-4(h) . 4.10.20.3.2.2 (07-12-2004) Returns filed after February 28, 2000, but before July 1, 2002 The Service will, in appropriate circumstances, request tax accrual workpapers that pertain to a listed transaction for returns filed after February 28, 2000, and before July 1, 2002, if the taxpayer was required to disclose the listed transaction and failed to do so. In general, these requests with respect to undisclosed listed transactions will be limited to the tax accrual workpapers for the years under examination, but may also extend to other years that may be directly relevant to the years under examination, such as the earlier origination year of the transaction or any year(s) in which the taxpayer or its independent auditors might logically have reevaluated their initial determinations of the tax contingencies of the transaction. The term "appropriate circumstances" as used in this section refers to situations for which requests for tax accrual workpapers are justified. Circumstances when a request for tax accrual workpapers would not be appropriate would be rare. For example, it might be appropriate not to pursue workpapers if the taxpayer has fully conceded the issue, including penalties, and the parties have executed a specific matters closing agreement with respect to the issues conceded by the taxpayer. The general rule, however, is that examiners should request tax accrual workpapers in all cases for returns filed after February 28, 2000 and before July 1, 2002 if the taxpayer failed to disclose a listed transaction. If there is an exceptional situation where the requirements of Announcement 2002-63 are met and the examiner believes that it is not appropriate to pursue the tax accrual workpapers, approval not to request the workpapers is required. For LB&I cases, the approval of the Director, Field Operations, LB&I would be required. For SB/SE cases, approval would be required by the Area Compliance Director, with the concurrence of the Director of Compliance Policy, SB/SE. For purposes of this paragraph, the required disclosure may have been made on the return; pursuant to Announcement 2002-2, 2002-1 C.B. 304; or under Rev. Proc. 94-69, 1994-2 C.B. 804, if applicable. 26 CFR 1.6011-4 requires that the taxpayer attach a disclosure statement to its return for each taxable year a taxpayer participates in a listed transaction. A copy of the disclosure statement is sent to the Office of Tax Shelter Analysis (OTSA) at the same time any disclosure statement is first filed by the taxpayer pertaining to a particular listed transaction. If the taxpayer is known to have engaged in a listed transaction for a return filed in this time period and there was no attachment to the taxpayer’s return that disclosed such participation under 26 CFR 1.6011-4 , then the examiner should query the taxpayer or contact OTSA to determine whether the taxpayer substantially complied with the disclosure requirement in another manner. See http://lmsb.irs.gov/complan/TAW/index.asp for OTSA contact information. OTSA keeps a database of all disclosures it receives. Solely for purposes of this policy, a disclosure using Form 8275 , Form 8275R , Form 8886 , or a similar statement is considered adequate disclosure. Announcement 2002-2 allowed taxpayers a limited opportunity to disclose their participation in tax shelters in return for a waiver of the IRC 6662 penalty. All disclosures made under this announcement were filed with OTSA. Examiners may contact OTSA to verify whether the taxpayer made a disclosure under this announcement. Rev. Proc. 94-69 provides Coordinated Industry Case (CIC) taxpayers under audit with a mechanism for making an adequate disclosure. Examiners should examine any such disclosure to determine whether it is adequate. 4.10.20.3.2.3 (01-15-2005) Returns filed on or after July 1, 2002 If a listed transaction was properly disclosed on the return, in the manner prescribed by 26 CFR 1.6011-4 , the Service will routinely request tax accrual workpapers that pertain only to the listed transaction for the year under examination. In these circumstances, the Service may also request tax accrual workpapers pertaining to the disclosed listed transaction for a year(s) not under examination, if such workpapers may be directly relevant to the Service’s audit for the year under examination, such as those described in paragraph (3). If, however, a listed transaction was not timely and properly disclosed in the manner described by 26 CFR 1.6011-4 , the Service will routinely request all tax accrual workpapers for the year under examination. In these circumstances, the Service may also request tax accrual workpapers for years not under examination, if such workpapers may be directly relevant to the Service’s audit of any known listed transactions for the years under examination. As a discretionary matter, all tax accrual workpapers for the year under examination will be requested if: The Service determines that the taxpayer claimed tax benefits from multiple listed transactions that were all properly disclosed; or In connection with the examination of a return claiming tax benefits from a single listed transaction that was disclosed, there are reported financial irregularities with respect to the taxpayer. Note: In either of these circumstances, the Service may also request tax accrual workpapers pertaining to the known listed transactions or the reported financial irregularities for years not under examination, if such workpapers may be directly relevant to the audit for the years under examination. The term "as a discretionary matter" as used in this section of the IRM denotes the exercise of prudence in executing policies. Wherever that term is used within this section of the IRM, the presumption is that the Service will request all tax accrual workpapers. There may be rare instances in which requesting all workpapers might not be appropriate. For example, if the taxpayer fully concedes all listed transactions, including penalties, and the parties have executed a specific matters closing agreement with respect to the issues conceded by the taxpayer then it may be appropriate not to seek all of the workpapers. If there is an exceptional situation where the examiner believes it is not appropriate to pursue all of the tax accrual workpapers, approval not to request all of the workpapers would be required. For LB&I cases, the approval of the Director, Field Operations, LB&I would be required. For SB/SE cases, approval would be required by the Area Compliance Director, with the concurrence of the Director of Compliance Policy, SB/SE. If a transaction becomes a listed transaction, within the definition in 26 CFR 1.6011-4, subsequent to the filing of a tax return, tax accrual workpapers will be requested, so long as at the time of the request the transaction is a listed transaction. Some listing notices contain effective dates which also should be considered in determining whether a transaction is listed. The examiner should work with Field Counsel to make these determinations.