[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Rules and Regulations]
[Pages 39020-39027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18456]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 301

[TD 8829]
RIN 1545-AW87


Compromises

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Temporary regulations.

-----------------------------------------------------------------------

SUMMARY: This document contains temporary regulations that provide 
additional guidance regarding the compromise of internal revenue taxes. 
The temporary regulations reflect changes to the law made by the 
Internal Revenue Service Restructuring and

[[Page 39021]]

Reform Act of 1998 and the Taxpayer Bill of Rights II. The text of 
these temporary regulations serves as the text of the proposed 
regulations set forth in the notice of proposed rulemaking on this 
subject in the Proposed Rules section of this issue of the Federal 
Register.

DATES: Effective date. These temporary regulations are effective July 
21, 1999.
    Applicability date. For dates of applicability, see Sec. 301.7122-
1T(j) of these regulations.

FOR FURTHER INFORMATION CONTACT: Carol A. Campbell, (202) 622-3620 (not 
a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    This document contains temporary regulations amending the Procedure 
and Administration Regulations (26 CFR part 301) under section 7122 of 
the Internal Revenue Code (Code). The regulations reflect the amendment 
of section 7122 by section 3462 of the Internal Revenue Service 
Restructuring and Reform Act of 1998 (``RRA 1998'') Public Law 105-206, 
(112 Stat. 685, 764) and by section 503 of the Taxpayer Bill of Rights 
II Public Law 104-168, (110 Stat. 1452, 1461).
    As amended by RRA 1998, section 7122 provides that the Secretary 
will develop guidelines to determine when an offer to compromise is 
adequate and should be accepted to resolve a dispute. The legislative 
history accompanying RRA 1998 explains that Congress intended that 
factors such as equity, hardship, and public policy be evaluated in the 
compromise of individual tax liabilities, in certain circumstances, if 
such consideration would promote effective tax administration. H. Conf. 
Rep. 599, 105th Cong., 2d Sess. 289 (1998).
    The current regulations under Treasury regulation Sec. 301.7122-1 
permit the compromise of cases on only the grounds of doubt as to 
collectibility, doubt as to liability, or both. These regulations are 
being removed. Like the current regulations, the temporary regulations 
provide for compromise based on doubt as to liability and doubt as to 
collectibility; however, they also provide for compromise based upon 
specific hardship and/or equitable criteria if such a compromise would 
promote effective tax administration. The inclusion in these 
regulations of a standard that will allow compromise on grounds other 
than doubt as to liability or doubt as to collectibility represents a 
significant change in the IRS' exercise of compromise authority.
    Section 7122 of the Code provides broad authority to the Secretary 
to compromise any case arising under the internal revenue laws, as long 
as the case has not been referred to the Department of Justice for 
prosecution or defense. Although the statutory language of Section 7122 
does not explicitly place limits on the Secretary's authority to 
compromise, opinions of the Attorney General and the regulations issued 
under section 7122 prior to RRA 1998 authorized the Secretary to 
compromise a liability under the revenue laws only when there was doubt 
as to liability (uncertainty as to the existence or amount of the tax 
obligation) or doubt as to collectibility (uncertainty as to the 
taxpayer's ability to pay). The opinion of the Attorney General most 
often cited as the principal source of these limitations is the 1933 
opinion of Attorney General Cummings that was issued in response to an 
inquiry from then Acting Secretary of the Treasury Acheson.
    In requesting an opinion from the Attorney General, Acting 
Secretary of the Treasury Acheson expressed concern that the country 
was trying to recover from the depression. He suggested that the public 
interest required compromise of tax claims where collection of the tax 
would ``destroy a business, ruin a tax producer, throw men out of 
employment, or result in the impoverishment of widows or minor children 
of a deceased taxpayer.'' The Secretary expressed the belief that in 
ordinary times, compromise of cases on public policy grounds should be 
rare but that, in light of the current state of the country, public 
policy should play a significantly greater role. Expressing the belief 
that it was more important that ``the business of the taxpayer be 
preserved and not destroyed,'' Acting Secretary Acheson suggested that 
cases should be compromised where the taxpayer is insolvent, even 
though the tax is fully collectible, and that penalties and certain 
interest charges should be ``compromisable wherever justice, equity, or 
public policy seems to justify the compromise * * *.'' Letter from 
Treasury Department, XIII-47-7137 (July 31, 1933).
    Attorney General Cummings replied that ``[t]here is much to be said 
for the proposition that a liberal rule should exist, but my opinion is 
that if such a course is to be taken it should be at the instance of 
Congress. I conclude that where liability has been established by a 
valid judgment or is certain, and there is no doubt as to the ability 
of the Government to collect, there is no room for `mutual 
concessions,' and therefore no basis for a `compromise.' '' Op. Atty. 
Gen. 6, XIII-47-7138 (October 24, 1933). See also Op. Atty. Gen. 7, 
XIII-47-7140 (October 2, 1934), wherein Attorney General Cummings 
stated that ``[t]here appears to be no statutory authority to 
compromise solely upon the ground that a hard case is presented, which 
excites sympathy or is merely appealing from the standpoint of equity, 
but the power to compromise clearly authorizes the settlement of any 
case about which uncertainty exists as to liability or collection.''
    Although the 1933 opinion of Attorney General Cummings is the most 
often cited opinion regarding the limits of the IRS' compromise 
authority (prior to RRA 1998), the conclusion he reached mirrored 
conclusions reached by a number of his predecessors. Thus, since 1868, 
a number of Attorneys General opined that when liability is not at 
issue, the Secretary's compromise authority permitted compromise only 
when ``the full amount of the debt'' could not be collected. See, e.g., 
12 Op. Atty. Gen. 543 (1868); 16 Op. Atty. Gen. 617 (1879) (the 
Secretary's authority to compromise does not permit the ``voluntary 
relinquishment'' of any part of a lawfully assessed tax from a solvent 
person or corporation).
    Following the issuance of Attorney General Cummings' 1933 opinion, 
Commissioner Helvering established a policy that IRS tax collectors 
should make every endeavor to secure offers that represent the 
taxpayer's ``maximum capacity to pay.'' Commissioner's Statement of 
Policy with Respect to the Compromise of Taxes, Interest, and 
Penalties, July 2, 1934. Commissioner Helvering recognized that the 
Attorney General's opinion did not specify or quantify the amount of 
doubt necessary to compromise, but concluded that ``* * * the Treasury 
Department does not propose to compromise when there is merely the 
possibility of doubt. The doubt as to liability or collectibility must 
be supported by evidence and must be substantial in character, and when 
such doubt exists, the amount acceptable will depend upon the degree of 
doubt found in the particular case.'' Id. Implementing the policy 
established by Commissioner Helvering, the IRS concluded that an offer 
premised upon doubt as to collectibility should be accepted only when 
the amount offered represented the maximum amount the taxpayer could 
pay, taking into account net equity in assets and both current and 
future income.
    The interpretation of section 7122 adopted by Attorney General 
Cummings (and reflected in Treasury reg. Sec. 301.7122-1(a)), together 
with the ``maximum capacity to pay'' policy

[[Page 39022]]

established by Commissioner Helvering, have been the fundamental 
guiding principles for IRS offer in compromise programs for the past 65 
years. From the 1930's to the early 1990's, offers to compromise were 
not widely used to resolve tax cases. In the early 1990s, however, the 
IRS determined that expanded use of offers to compromise could 
contribute to more effective tax administration in two important 
respects. First, the IRS determined that compromise could be used as a 
technique to enhance overall compliance by providing taxpayers with a 
reasonable avenue to resolve past difficulties. Second, the IRS 
determined that it should make more effective use of offers to 
compromise to help manage the inventory of delinquent tax accounts. 
Accordingly, while still operating within the basic legal and policy 
guidelines established in the 1930's, the IRS initiated two significant 
changes intended to enhance the compromise program.
    In 1992, the IRS adopted a new compromise policy and issued revised 
compromise procedures. The policy provides that an offer to compromise 
will be accepted when it is unlikely that the tax liability can be 
collected in full and the amount offered reasonably reflects collection 
potential. As set forth in the new policy statement, the goal of the 
compromise program is to achieve collection of what is potentially 
collectible at the earliest possible time and at the least cost to the 
government while providing taxpayers with a fresh start toward future 
voluntary compliance. Policy Statement, P-5-100. In administering its 
policies under the offer program, the threshold question of ``doubt as 
to liability or doubt as to collectibility'' set forth in the 
regulations constituted a legal requirement that must be followed; once 
that threshold was met, however, the IRS could legally accept less than 
the taxpayer's maximum capacity to pay. References in the offer 
procedures to ``maximizing collection'' and ``maximum capacity to pay'' 
were replaced with ``reasonably reflects collection potential.'' Id.
    In determining whether an offer reasonably reflects collection 
potential, the IRS takes into consideration amounts that might be 
collected from (1) The taxpayer's assets, (2) the taxpayer's present 
and projected future income, and (3) third parties (e.g., persons to 
whom the taxpayer had transferred assets). Although most doubt as to 
collectibility offers only involve consideration of the taxpayer's 
equity in assets and future disposable income over a fixed period of 
time, the IRS on occasion also will consider whether the taxpayer 
should be expected to raise additional amounts from assets in which the 
taxpayer's interest is beyond the reach of enforced collection (e.g., 
interests in property located in foreign jurisdictions or held in 
tenancies by the entirety). IRM 57(10)(10).1.
    The compromise program was also affected by a 1995 IRS initiative 
designed to ensure uniform treatment of similarly situated taxpayers. 
In administering its collection operations, including both the 
installment agreement program and the compromise program, the IRS has 
always permitted taxpayers to retain sufficient funds to pay reasonable 
living expenses. Certain commentators had asserted that there were wide 
variances in the type and amount of such reasonable expense allowances 
within and between districts. In September of 1995, the IRS adopted and 
published national and local standards for determining allowable 
expenses, designed to apply to all collection actions, including offers 
to compromise. National expense standards derived from the Bureau of 
Labor Statistics Consumer Expenditure Survey were promulgated for 
expense categories such as food, clothing, personal care items, and 
housekeeping supplies. Local expense standards derived from Census 
Bureau data were promulgated for housing, utilities, and 
transportation.
    The IRS allowable expense criteria play an important role in 
determining whether taxpayers are candidates for compromise or 
installment agreements. Although offers to compromise and installment 
agreements are separate mechanisms for resolving outstanding tax 
liabilities, there often is a significant interplay between the two 
programs, because a taxpayer's income available to satisfy the tax 
liability is determined after the deduction of allowable expenses. In 
some cases, the allowable expense criteria may be the determining 
factor in whether the taxpayer receives an installment agreement or a 
compromise. An installment agreement must provide for payment in full 
of the amount of the outstanding liability through regular, periodic 
payments (generally monthly). I.R.C. Sec. 6159. An offer to compromise, 
by contrast, reflects the fact that the taxpayer has no ability to pay 
the liability in full. Accordingly, taxpayers entering into compromise 
agreements can pay an amount less than the full amount due in 
satisfaction of the liability.
    Congress now has directed the Secretary to consider factors other 
than doubt as to collectibility and doubt as to liability in 
determining whether to accept an offer to compromise. Under 
Sec. 7122(c), added by RRA 1998, factors such as equity, hardship, and 
public policy will be considered in certain circumstances where such 
consideration will promote effective tax administration. The 
legislative history of this provision (H. Conf. Rep. 599, 105th Cong., 
2d Sess. 289 (1998)) states that--

    * * * the conferees expect that the present regulations will be 
expanded so as to permit the IRS, in certain circumstances, to 
consider additional factors (i.e., factors other than doubt as to 
liability or collectibility) in determining whether to compromise 
the income tax liabilities of individual taxpayers. For example, the 
conferees anticipate that the IRS will take into account factors 
such as equity, hardship, and public policy where a compromise of an 
individual taxpayer's income tax liability would promote effective 
tax administration. The conferees anticipate that, among other 
situations, the IRS may utilize this new authority, to resolve 
longstanding cases by forgoing penalties and interest which have 
accumulated as a result of delay in determining the taxpayer's 
liability. The conferees believe that the ability to compromise tax 
liability and to make payments of tax liability by installment 
enhances taxpayer compliance. In addition, the conferees believe 
that the IRS should be flexible in finding ways to work with 
taxpayers who are sincerely trying to meet their obligations and 
remain in the tax system. Accordingly, the conferees believe that 
the IRS should make it easier for taxpayers to enter into offer-in-
compromise agreements, and should do more to educate the taxpaying 
public about the availability of such agreements.

    Another consideration for compromise cases is Chief Counsel review. 
Since its enactment in section 102 of the Act of July 20, 1868 (15 
Stat. 166), the statute authorizing the Secretary to compromise 
liabilities has contained a requirement that Counsel issue opinions 
regarding certain of those compromises. Section 7122(b) of the Code 
requires that the opinion of Counsel, with the reasons therefor, be 
placed on file whenever a compromise is made by the IRS. Chief Counsel 
opinions assess both whether the offer meets the legal requirements for 
compromise and whether the offer conforms to IRS policy and procedure. 
The opinion provided by Chief Counsel, however, does not have to be in 
favor of compromise. Pursuant to delegated authority, district 
directors, service center directors, and regional directors of Appeals 
have the authority to accept an offer that Counsel has opined does not 
conform to IRS policy.
    Until passage of the Taxpayer Bill of Rights II (TBOR 2), Chief 
Counsel review was required in all cases in which the liability 
compromised was

[[Page 39023]]

$500 or more. Under TBOR 2, such an opinion is required only in cases 
where the compromised liability is $50,000 or more.

Explanation of Provisions

    The temporary regulations continue the traditional grounds for 
compromise based on doubt as to liability or doubt as to 
collectibility. In addition, to reflect the changes made in RRA 1998, 
the temporary regulations allow a compromise where there is no doubt as 
to liability or as to collectibility, but where either: (1) Collection 
of the liability would create economic hardship, or (2) exceptional 
circumstances exist such that collection of the liability would be 
detrimental to voluntary compliance. Compromise based on these hardship 
and equity bases may not, however, be authorized if it would undermine 
compliance. Although the temporary regulations set forth the conditions 
that must be satisfied to accept an offer to compromise liabilities 
arising under the internal revenue laws, they do not prescribe the 
terms or conditions that should be contained in such offers. Thus, the 
amount to be paid, future compliance or other conditions precedent to 
satisfaction of a liability for less than the full amount due are 
matters left to the discretion of the Secretary.
    The temporary regulations also add provisions relating to the 
promulgation of requirements for providing for basic living expenses, 
evaluating offers from low income taxpayers, and reviewing rejected 
offers, as required by RRA 1998. The temporary regulations also add 
provisions relating to staying collection, modifying the dollar 
criteria for requiring the opinion of Chief Counsel in accepted offers, 
and setting forth the requirements regarding waivers and suspensions of 
the statute of limitations. Except for the provision related to dollar 
criteria for Chief Counsel review, all of the additional provisions of 
Sec. 301.7122-1T are authorized by RRA 1998. The modification of dollar 
criteria for Chief Counsel review is authorized by section 503(a) of 
the Taxpayer Bill of Rights II.
    As required by Sec. 7122(c)(2)(A) and (B), added by RRA 1998, the 
temporary regulations provide for the development and publication of 
national and local living allowances that permit taxpayers entering 
into offers to compromise to have an adequate means to provide for 
their basic living expenses. The determination whether the published 
standards should be applied in any particular case must be based upon 
an evaluation of the individual facts and circumstances presented. The 
Secretary will determine the appropriate means to publish these 
national and local living allowances.
    In accordance with Sec. 7122(c)(3)(A), the temporary regulations 
also require the development of supplemental guidelines for the 
evaluation of offers from ``low income'' taxpayers. The temporary 
regulations permit the Secretary to determine which taxpayers qualify 
as ``low income'' taxpayers based upon current dollar criteria applied 
by the U.S. Department of Health and Human Services under authority of 
section 673(2) of the Omnibus Budget Reconciliation Act of 1981, or any 
other measure reasonably designed to identify such taxpayers.
    In accordance with Sec. 7122(d)(1), the temporary regulations 
provide that all proposed rejections of offers to compromise will 
receive independent administrative review prior to final rejection. 
Section 7122(d)(2) requires and the temporary regulations also provide 
that the taxpayer has the right to appeal any rejection of an offer to 
compromise to the IRS Office of Appeals. The temporary regulations 
provide, however, that when the IRS returns an offer to compromise 
because it was not processable under IRS procedures, because the offer 
was submitted solely to delay collection or because the taxpayer failed 
to provide requested information required by the IRS to evaluate the 
offer, such a return of the offer does not constitute a rejection and 
thus, does not entitle the taxpayer to appeal rights under this 
provision. In the event that an offer to compromise is returned under 
these circumstances and the IRS institutes collection action, the 
taxpayer may have the right to consideration of the whole of his or her 
collection case under other provisions of the Code.
    Pursuant to section 6331(k) of the Code, as amended by section 3462 
of RRA 1998, the temporary regulations also provide that for offers 
pending on or submitted on or after January 1, 2000, no enforced 
collection activity may be taken by the IRS to collect a liability 
while an offer to compromise is pending, or for the 30 days following 
any rejection of an offer to compromise, or during any period that an 
appeal of any rejection, when such appeal is instituted within the 30 
days following rejection, is being considered. Collection activity will 
not, however, be precluded in any case where collection is in jeopardy 
or the offer to compromise was submitted solely to delay collection.
    Effective through December 31, 1999, the temporary regulations 
continue to require the taxpayer to waive the running of the statutory 
period of limitations on collection as a condition of acceptance of an 
offer to compromise. Effective January 1, 2000, waivers of the statute 
of limitations on collection will no longer be required for the 
acceptance of an offer to compromise. Instead, the statute of 
limitations for collection will be suspended during the period the 
offer to compromise is under consideration by the IRS. This provision 
of the temporary regulations implements section 3461 of RRA 1998.
    The temporary regulations also implement section 503(a) of the 
Taxpayer Bill of Rights II by specifying that Chief Counsel review of 
an accepted offer to compromise is required only for offers in 
compromise involving $50,000 or more in unpaid liabilities.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It also has been determined that 
sections 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. 
chapter 5) do not apply to these regulations. Please refer to the 
cross-referenced notice of proposed rulemaking published elsewhere in 
this issue of the Federal Register for the applicability of the 
Regulatory Flexibility Act (5 U.S.C. chapter 6). Pursuant to section 
7805(f) of the Internal Revenue Code, these temporary regulations will 
be submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on its impact on small business.
    Drafting Information: The principal author of these temporary 
regulations is Carol A. Campbell of the Office of Assistant Chief 
Counsel (General Litigation). However, other personnel from the IRS and 
Treasury Department participated in their development.

List of Subjects in 26 CFR Part 301

    Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income 
taxes, Penalties, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 301 is amended as follows:

PART 301--PROCEDURE AND ADMINISTRATION

    Paragraph 1. The authority citation for part 301 continues to read 
in part as follows:

    Authority: 26 U.S.C. 7805 * * *


[[Page 39024]]




Sec. 301.7122-1--  [Removed]

    Par. 2. Section 301.7122-1 is removed.
    Par. 3. Section Sec. 301.7122-0T and 301.7211-1T are added to read 
as follows:


Sec. 301.7122-0T-2  Table of contents.

    This section list the captions that appear in the temporary 
regulations under Sec. 301.7122-1T.

Sec. 301.7122-1T  Compromises (temporary).

    (a) In general.
    (b) Grounds for compromise.
    (c) Procedures for submission and consideration of offers.
    (d) Acceptance of an offer to compromise a tax liability.
    (e) Rejection of an offer to compromise.
    (f) Effect of offer to compromise on collection activity
    (g) Deposits.
    (h) Statute of limitations.
    (i) Inspection with respect to accepted offers to compromise.
    (j) Effective date.


Sec. 301.7122-1T  Compromises (temporary).

    (a) In general. (1) The Secretary may exercise his discretion to 
compromise any civil or criminal liability arising under the internal 
revenue laws prior to reference of a case involving such a liability to 
the Department of Justice for prosecution or defense.
    (2) An agreement to compromise may relate to a civil or criminal 
liability for taxes, interest, or penalties. Unless the terms of the 
offer and acceptance expressly provide otherwise, acceptance of an 
offer to compromise a civil liability does not remit a criminal 
liability, nor does acceptance of an offer to compromise a criminal 
liability remit a civil liability.
    (b) Grounds for compromise. (1) In general. The Secretary may 
compromise a liability on any of the following three grounds.
    (2) Doubt as to liability. Doubt as to liability exists where there 
is a genuine dispute as to the existence or amount of the correct tax 
liability under the law. Doubt as to liability does not exist where the 
liability has been established by a final court decision or judgment 
concerning the existence or amount of the liability. See 
Sec. 301.7122(e)(4) for special rules applicable to rejection of offers 
in cases where the IRS is unable to locate the taxpayer's return or 
return information to verify the liability.
    (3) Doubt as to collectibility. (i) In general. Doubt as to 
collectibility exists in any case where the taxpayer's assets and 
income are less than the full amount of the assessed liability.
    (ii) Allowable expenses. A determination of doubt as to 
collectibility will include a determination of ability to pay. In 
determining ability to pay, the Secretary will permit taxpayers to 
retain sufficient funds to pay basic living expenses. The determination 
of the amount of such basic living expenses will be founded upon an 
evaluation of the individual facts and circumstances presented by the 
taxpayer's case. To guide this determination, guidelines published by 
the Secretary on national and local living expense standards will be 
taken into account.
    (iii) Nonliable spouses. (A) In general. Where a taxpayer is 
offering to compromise a liability for which the taxpayer's spouse has 
no liability, the assets and income of the nonliable spouse will not be 
considered in determining the amount of an adequate offer, except to 
the extent property has been transferred by the taxpayer to the 
nonliable spouse under circumstances that would permit the IRS to 
effect collection of the taxpayer's liability from such property, e.g., 
property that was conveyed in fraud of creditors, or as provided in 
paragraph (b)(3)(iii) (B) of this section. The IRS may, however, 
request information regarding the assets and/or income of the nonliable 
spouse for the sole purpose of verifying the amount of and 
responsibility for expenses claimed by the taxpayer.
    (B) Exception. Where collection of the taxpayer's liability from 
the assets and/or income of the nonliable spouse is permitted by 
applicable state law (e.g., under state community property laws), the 
assets and income of the nonliable spouse will be considered in 
determining the amount of an adequate offer except to the extent that 
the taxpayer and the nonliable spouse demonstrate that collection of 
such assets and income would have a material and adverse impact on the 
standard of living of the taxpayer, the nonliable spouse, and their 
dependents.
    (4) Promote effective tax administration. If there are no grounds 
for compromise under paragraphs (b)(2) and (3) of this temporary 
regulation, a compromise may be entered into to promote effective tax 
administration when--
    (i) Collection of the full liability will create economic hardship 
within the meaning of Sec. 301.6343-1; or
    (ii) Regardless of the taxpayer's financial circumstances, 
exceptional circumstances exist such that collection of the full 
liability will be detrimental to voluntary compliance by taxpayers; and
    (iii) Compromise of the liability will not undermine compliance by 
taxpayers with the tax laws.
    (iv) Special rules for evaluating offers to promote effective tax 
administration. (A) The determination to accept or reject an offer to 
compromise made on the ground that acceptance would promote effective 
tax administration within the meaning of this section will be based 
upon consideration of all the facts and circumstances, including the 
taxpayer's record of overall compliance with the tax laws.
    (B) Factors supporting (but not conclusive of) a determination of 
economic hardship under paragraph (b)(4)(i) include--
    (1) Taxpayer is incapable of earning a living because of a long 
term illness, medical condition, or disability and it is reasonably 
foreseeable that taxpayer's financial resources will be exhausted 
providing for care and support during the course of the condition;
    (2) Although taxpayer has certain assets, liquidation of those 
assets to pay outstanding tax liabilities would render the taxpayer 
unable to meet basic living expenses; and
    (3) Although taxpayer has certain assets, the taxpayer is unable to 
borrow against the equity in those assets and disposition by seizure or 
sale of the assets would have sufficient adverse consequences such that 
enforced collection is unlikely.
    (C) Factors supporting (but not conclusive of) a determination that 
compromise would not undermine compliance by taxpayers with the tax 
laws include--
    (1) Taxpayer does not have a history of noncompliance with the 
filing and payment requirements of the Internal Revenue Code;
    (2) Taxpayer has not taken deliberate actions to avoid the payment 
of taxes; and
    (3) Taxpayer has not encouraged others to refuse to comply with the 
tax laws.
    (D) Examples. The following examples illustrate cases that may be 
compromised under the provisions of paragraph (b)(4)(i):

    Example 1. Taxpayer has assets sufficient to satisfy the tax 
liability. Taxpayer provides full time care and assistance to her 
dependent child, who has a serious long-term illness. It is expected 
that the taxpayer will need to use the equity in her assets to 
provide for adequate basic living expenses and medical care for her 
child. Taxpayer's overall compliance history does not weigh against 
compromise.
    Example 2. Taxpayer is retired and his only income is from a 
pension. The taxpayer's only asset is a retirement account, and the 
funds in the account are sufficient to satisfy the liability. 
Liquidation of the retirement account would leave the taxpayer 
without an adequate means to provide for

[[Page 39025]]

basic living expenses. Taxpayer's overall compliance history does 
not weigh against compromise.
    Example 3. Taxpayer is disabled and lives on a fixed income that 
will not, after allowance of adequate basic living expenses, permit 
full payment of his liability under an installment agreement. 
Taxpayer also owns a modest house that has been specially equipped 
to accommodate his disability. Taxpayer's equity in the house is 
sufficient to permit payment of the liability he owes. However, 
because of his disability and limited earning potential, taxpayer is 
unable to obtain a mortgage or otherwise borrow against this equity. 
In addition, because the taxpayer's home has been specially equipped 
to accommodate his disability, forced sale of the taxpayer's 
residence would create severe adverse consequences for the taxpayer, 
making such a sale unlikely. Taxpayer's overall compliance history 
does not weigh against compromise.
    Example 4. Taxpayer is a business that despite the adoption of a 
wide array of precautions, including the employment of outside 
auditors, suffered an embezzlement loss. Although the taxpayer 
reviewed and signed employment tax returns and signed checks for 
payment of all employment tax liabilities, the embezzling employee 
successfully intercepted these checks and diverted the funds. At the 
time taxpayer discovers the diversions, taxpayer promptly contacts 
the IRS and begins proceedings to obtain recovery from the employee 
and the auditor. Taxpayer is unsuccessful in obtaining any recovery 
from either the employee or the auditor. While taxpayer has accounts 
receivable that will satisfy the tax delinquencies, taxpayer would 
be unable to remain in business if those receivables were seized by 
the IRS. Further, while taxpayer will continue to generate some 
profit if permitted to remain in business, those profits would not 
be sufficient to pay the accrued liabilities prior to the time 
collection of the liabilities became barred by the statute of 
limitations. Taxpayer's overall compliance history does not weigh 
against compromise.

    (E) The following examples illustrate cases that may be compromised 
under paragraph (b)(4)(ii):

    Example 1. In October of 1986, taxpayer developed a serious 
illness that resulted in almost continuous hospitalizations for a 
number of years. The taxpayer's medical condition was such that 
during this period the taxpayer was unable to manage any of his 
financial affairs. The taxpayer has not filed tax returns since that 
time. The taxpayer's health has now improved and he has promptly 
begun to attend to his tax affairs. He discovers that the IRS 
prepared a substitute for return for the 1986 tax year on the basis 
of information returns it had received and had assessed a tax 
deficiency. When the taxpayer discovered the liability, with 
penalties and interest, the tax bill is more than three times the 
original tax liability. Taxpayer's overall compliance history does 
not weigh against compromise.
    Example 2. Taxpayer is a salaried sales manager at a department 
store who has been able to place $2,000 in a tax-deductible IRA 
account for each of the last two years. Taxpayer learns that he can 
earn a higher rate of interest on his IRA savings by moving those 
savings from a money management account to a certificate of deposit 
at a different financial institution. Prior to transferring his 
savings, taxpayer submits an E-Mail inquiry to the IRS at its Web 
Page, requesting information about the steps he must take to 
preserve the tax benefits he has enjoyed and to avoid penalties. The 
IRS responds in an answering E-Mail that the taxpayer may withdraw 
his IRA savings from his neighborhood bank, but he must redeposit 
those savings in a new IRA account within 90 days. Taxpayer 
withdraws the funds and redeposits them in a new IRA account 63 days 
later. Upon audit, taxpayer learns that he has been misinformed 
about the required rollover period and that he is liable for 
additional taxes, penalties and additions to tax for not having 
redeposited the amount within 60 days. Had it not been for the 
erroneous advice that is reflected in the taxpayer's retained copy 
of the IRS E-Mail response to his inquiry, taxpayer would have 
redeposited the amount within the required 60-day period. Taxpayer's 
overall compliance history does not weigh against compromise.

    (c) Procedures for submission and consideration of offers. (1) In 
general. An offer to compromise a tax liability pursuant to section 
7122 must be submitted according to the procedures, and in the form and 
manner, prescribed by the Secretary. An offer to compromise a tax 
liability must be signed by the taxpayer under penalty of perjury and 
must contain the information prescribed or requested by the Secretary. 
However, taxpayers submitting offers to compromise liabilities solely 
on the basis of doubt as to liability will not be required to provide 
financial statements.
    (2) When offers become pending and return of offers. An offer to 
compromise becomes pending when it is accepted for processing. If an 
offer accepted for processing does not contain sufficient information 
to permit the IRS to evaluate whether the offer should be accepted, the 
IRS will request the taxpayer to provide the needed additional 
information. If the taxpayer does not submit the additional information 
that the IRS has requested within a reasonable time period after such a 
request, the IRS may return the offer to the taxpayer. The IRS may also 
return an offer to compromise a tax liability if it determines that the 
offer was submitted solely to delay collection or was otherwise 
nonprocessable. An offer returned following acceptance for processing 
is deemed pending only for the period between the date the offer is 
accepted for processing and the date the IRS returns the offer to the 
taxpayer. See paragraphs (e)(5)(ii) and (f)(2)(iv) of this temporary 
regulation for rules regarding the effect of such returns of offers.
    (3) Withdrawal. An offer to compromise a tax liability may be 
withdrawn by the taxpayer or the taxpayer's representative at any time 
prior to the IRS' acceptance of the offer to compromise. An offer will 
be considered withdrawn upon the IRS' receipt of written notification 
of the withdrawal of the offer by personal delivery, or by certified 
mail, or upon issuance of a letter by the IRS confirming the taxpayer's 
intent to withdraw the offer.
    (d) Acceptance of an offer to compromise a tax liability. (1) An 
offer to compromise has not been accepted until the IRS issues a 
written notification of acceptance to the taxpayer or the taxpayer's 
representative.
    (2) As additional consideration for the acceptance of an offer to 
compromise, the IRS may request that taxpayer enter into any collateral 
agreement or post any security which is deemed necessary for the 
protection of the interests of the United States.
    (3) Offers may be accepted when they provide for payment of 
compromised amounts in one or more equal or unequal installments.
    (4) If the final payment on an accepted offer to compromise is 
contingent upon the immediate and simultaneous release of a tax lien in 
whole or in part, such payment must be made in accordance with the 
forms, instructions, or procedures prescribed by the Secretary.
    (5) Acceptance of an offer to compromise will conclusively settle 
the liability of the taxpayer specified in the offer. Neither the 
taxpayer nor the Government will, following acceptance of an offer to 
compromise, be permitted to reopen the case except in instances where--
    (i) False information or documents are supplied in conjunction with 
the offer;
    (ii) The ability to pay and/or the assets of the taxpayer are 
concealed; or
    (iii) A mutual mistake of material fact sufficient to cause the 
offer agreement to be reformed or set aside is discovered.
    (6) Opinion of Chief Counsel. Except as otherwise provided in this 
paragraph (d)(6), if an offer to compromise is accepted, there will be 
placed on file the opinion of the Chief Counsel for the IRS with 
respect to such compromise, along with the reasons therefor. However, 
no such opinion will be required with respect to the compromise of any 
civil case in which the unpaid amount of tax assessed (including any 
interest, additional amount, addition to the tax, or assessable 
penalty) is less than

[[Page 39026]]

$50,000. Also placed on file will be a statement of--
    (i) The amount of tax assessed;
    (ii) The amount of interest, additional amount, addition to the 
tax, or assessable penalty, imposed by law on the person against whom 
the tax is assessed; and
    (iii) The amount actually paid in accordance with the terms of the 
compromise.
    (e) Rejection of an offer to compromise. (1) An offer to compromise 
has not been rejected until the IRS issues a written notice to the 
taxpayer or his representative, advising of the rejection, the 
reason(s) for rejection, and the right to an appeal.
    (2) The IRS may not notify a taxpayer or taxpayer's representative 
of the rejection of an offer to compromise until an independent 
administrative review of the proposed rejection is completed.
    (3) Low income taxpayers. No offer to compromise received from a 
low income taxpayer may be rejected solely on the basis of the amount 
of the offer without evaluating whether that offer meets the criteria 
in paragraph (b) of this section. For purposes of this paragraph 
(e)(3), a low income taxpayer is a taxpayer who falls at or below the 
dollar criteria established by the poverty guidelines updated annually 
in the Federal Register by the U.S. Department of Health and Human 
Services under authority of section 673(2) of the Omnibus Budget 
Reconciliation Act of 1981 or such other measure that is adopted by the 
Secretary.
    (4) Offers based upon doubt as to liability. Offers submitted on 
the basis of doubt as to liability cannot be rejected solely because 
the IRS is unable to locate the taxpayer's return or return information 
for verification of the liability.
    (5) Appeal of rejection of an offer in compromise. (i) In general. 
The taxpayer may administratively appeal a rejection of an offer to 
compromise to the IRS Office of Appeals (Appeals) if, within the 30-day 
period commencing the day after the date on the letter of rejection, 
the taxpayer requests such an administrative review in the manner 
provided by the Secretary.
    (ii) Offer to compromise returned following a determination that 
the offer was nonprocessable, a failure by the taxpayer to provide 
requested information, or a determination that the offer was submitted 
for purposes of delay. Where a determination is made to return offer 
documents because the offer to compromise was nonprocessable, because 
the taxpayer failed to provide requested information, or because the 
IRS determined that the offer to compromise was submitted solely for 
purposes of delay under paragraph (c)(2) of this section, the return of 
the offer does not constitute a rejection of the offer for purposes of 
this provision and does not entitle the taxpayer to appeal the matter 
to Appeals under the provisions of this paragraph (e)(5). However, if 
the offer is returned because the taxpayer failed to provide requested 
financial information, the offer will not be returned until an 
independent administrative review of the proposed return is completed.
    (f) Effect of offer to compromise on collection activity. (1) 
Offers submitted prior to and not pending on or after December 31, 
1999. For offers to compromise submitted prior to and not pending on or 
after December 31, 1999, the submission of an offer to compromise will 
not automatically operate to stay the collection of any liability. 
Enforcement of collection may, however, be deferred if the interests of 
the United States will not be jeopardized thereby.
    (2) Offers pending on or made on or after December 31, 1999. (i) In 
general. For offers pending on or made on or after December 31, 1999, 
the IRS will not make any levies to collect the liability that is the 
subject of the compromise during the period the IRS is evaluating 
whether such offer will be accepted or rejected, for 30 days 
immediately following the rejection of the offer, and for any period 
when a timely filed appeal from the rejection is being considered by 
Appeals.
    (ii) Revised offers submitted following rejection. If, following 
the rejection of an offer to compromise pending on or made on or after 
December 31, 1999, the taxpayer makes a good faith revision of that 
offer and submits the revised offer within 30 days after the date of 
rejection, the IRS will not levy to collect the liability that is the 
subject of the revised offer to compromise while the IRS is evaluating 
whether to accept or reject the revised offer.
    (iii) Jeopardy. The IRS may levy to collect the liability that is 
the subject of an offer to compromise during the period the IRS is 
evaluating whether that offer will be accepted if it determines that 
collection of the liability is in jeopardy.
    (iv) Offers to compromise determined by IRS to be nonprocessable or 
submitted solely for purposes of delay. The IRS may levy to collect the 
liability that is the subject of an offer to compromise at any time 
after it determines, under paragraph (c)(2) of this section, that a 
pending offer did not contain sufficient information to permit 
evaluation of whether the offer should be accepted, that the offer was 
submitted solely to delay collection, or that the offer was otherwise 
nonprocessable.
    (v) Offsets under section 6402. Notwithstanding the evaluation and 
processing of an offer to compromise, the IRS may, in accordance with 
section 6402, credit any overpayments made by the taxpayer against a 
liability that is the subject of an offer to compromise and may offset 
such overpayments against other liabilities owed by the taxpayer to the 
extent authorized by section 6402.
    (g) Deposits. Sums submitted with an offer to compromise a 
liability or during the pendency of an offer to compromise are 
considered deposits and will not be applied to the liability until the 
offer is accepted unless the taxpayer provides written authorization 
for application of the payments. If an offer to compromise is 
withdrawn, is determined to be nonprocessable, or is submitted solely 
for purposes of delay and returned to the taxpayer, any amount tendered 
with the offer, including all installments paid on the offer, will be 
refunded without interest. If an offer is rejected, any amount tendered 
with the offer, including all installments paid on the offer, will be 
refunded, without interest, after the conclusion of any review sought 
by the taxpayer with Appeals. Refund will not be required if the 
taxpayer has agreed in writing that amounts tendered pursuant to the 
offer may be applied to the liability for which the offer was 
submitted.
    (h) Statute of limitations. (1) Offers submitted prior to and not 
pending on or after December 31, 1999. For offers to compromise 
submitted prior to and not pending on or after December 31, 1999--
    (i) If the 10-year period specified in section 6502(a) will expire 
prior to December 31, 2002, and
    (ii) Payments due under the agreement are scheduled to be made 
after the date upon which the 10-year period specified in section 
6502(a) will expire--

no offer will be accepted unless the taxpayer executes a consent to 
extend the statutory period of limitations on the collection of the 
liability involved until the date one year subsequent to the date of 
the last scheduled payment or until December 31, 2002, whichever is 
earlier.

    (2) Offers pending on or made on or after December 31, 1999. For 
offers pending on or made on or after December 31, 1999, the statute of 
limitations on collection will be suspended while collection is 
prohibited under paragraph (f)(2) of this section.

[[Page 39027]]

    (3) For any offer to compromise, the IRS may continue to require, 
where appropriate, the extension of the statute of limitations on 
assessment. However, in any case where waiver of the running of the 
statutory period of limitations on assessment is sought, the taxpayer 
must be notified of the right to refuse to extend the period of 
limitations or to limit the extension to particular issues or 
particular periods of time.
    (i) Inspection with respect to accepted offers to compromise. For 
provisions relating to the inspection of returns and accepted offers to 
compromise, see section 6103(k)(1).
    (j) Effective date. Except as otherwise provided, this section 
applies to offers to compromise submitted on or after July 21, 1999, 
through July 19, 2002.
Charles O. Rossotti,
Commissioner of Internal Revenue.
    Approved: July 14, 1999.
Donald C. Lubick,
Assistant Secretary of the Treasury.
[FR Doc. 99-18456 Filed 7-19-99; 8:45 am]
BILLING CODE 4830-01-U