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IRS Official Provides Update on Large Partnership Compliance Audits

Almost 11 months ago, the Internal Revenue Service (IRS) released a memorandum regarding the implementation of the Large Partnership Compliance (LPC) Pilot Program, including the identification, selecting and delivery of large partnership tax returns, exam procedures and feedback. The goal of the LPC program is to identify the largest partnership cases and develop improved methods for identifying and assessing the compliance risks presented by these taxpayers. Large partnerships include those with more than $10 million in assets, and such partnerships are subject to data analytics and classification processes. Audits of these large partnerships are conducted by the Large Business & International (LB&I) division.

The LPC program was discussed at the recent Tax Executives Institute conference in New York. IRS officials noted that 50 large partnerships have been selected for the first round of audits, focusing on the 2019 tax year. The IRS currently is undecided as to whether LB&I plans to audit subsequent year returns for the selected partnerships, but likely will not subject such partnerships to a continuous audit process that is used for many large corporate taxpayers.

An interesting discussion took place at the conference related to whether IRS revenue agents will share with the selected partnerships the risk level assigned to their partnership return and which issues will be examined. (Risk assessment and identification of issues are generally included in audit plans for corporate taxpayers, although the level of risk may not necessarily be disclosed.) Currently, some agents are providing such information to selected partnerships but there is no consensus or standard practice at the audit level.

Practice Point: The IRS has made it well known that large partnerships are on their radar and there is a need to focus on these audits to ensure taxpayer compliance. In our experience, revenue agents tend to be more transparent in audits of large taxpayers when it comes to the issues under examination, but it would be a welcome development if the IRS announced at the outset of the audit more standard procedures for informing taxpayers of the risk levels assigned. As the LPC program continues, we are hopeful that the IRS will decide to share more data with the public. We expect an increase in audit activity as a result of additional funding received by the IRS, and it appears that the IRS will focus those efforts on large partnerships.

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An Overview of IRS Organization and Operations

McDermott’s Federal Tax Controversy Practice Group focuses on representing taxpayers in tax disputes with the Internal Revenue Service (IRS) in IRS examinations and IRS administrative appeals as well as litigation in federal trial and appellate courts. In resolving such disputes, it is helpful for taxpayers (and tax practitioners) to understand how the IRS operates as an organization in addition to its chain of command. To that end, below, we set forth some basic information regarding the organization and operations of the IRS.

Many of our clients are audited by the IRS’s Large Business & International (LB&I) division. On our Resources page, we added an LB&I Resources document that details its organization, including the roles and responsibilities of an LB&I examination team.


The IRS is organized to carry out the responsibilities of the US Secretary of the Treasury under Internal Revenue Code Section 7801. The Secretary has the authority to administer and enforce the internal revenue laws and the power to create an agency to enforce said laws. The IRS was created based on this grant of authority. The IRS Commissioner administers and supervises the execution and application of the internal revenue laws.

The IRS is organized into two primary organizations—the Deputy Commissioner for Services and Enforcement (DCSE) and the Deputy Commissioner for Operations Support (DCOS).

DCSE oversees the following operating divisions:

  • Wage and Investment (W&I)
  • Small Business/Self-Employed (SB/SE)
  • Large Business and International (LB&I)
  • Tax Exempt and Government Entities (TE/GE)
  • Criminal Investigation (CI)
  • Office of Professional Responsibility (OPR)
  • Whistleblower Office
  • Return Preparer Office (RPO)
  • Online Services

DCOS oversees the following integrated support functions:

  • Information Technology (IT)
  • Chief Financial Office (CFO)
  • Facilities Management and Security Services (FMSS)
  • Human Capital Office (HCO)
  • Private, Government Liaison and Disclosure (PGLD)
  • Equity, Diversity and Inclusion (EDI)
  • Office of the Chief Risk Office (CRO)
  • Procurement
  • Research Applied Analytics and Statistics (RAAS)

Certain key functions report directly to the IRS Commissioner. Those include:

  • Chief Counsel (Counsel)
  • Communications and Liaison (C&L)
  • IRS Independent Office of Appeals (Appeals)
  • National Taxpayer Advocate

Practice Point: IRS examinations are a fact of life, especially for large corporate taxpayers. The above overview and the LB&I Resources guide provide more information on how the IRS is organized and operated. The more taxpayers and tax practitioners know, the better the odds of a smooth and efficient examination process.

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IRS Audit Update: Communicating Via Video Meetings and Secure Messaging

The traditional audit experience for taxpayers large and small has, like many things, been impacted by COVID-19. Taxpayers and the Internal Revenue Service (IRS) have been forced to navigate audits in a remote environment, causing issues related to exchanging documents, engaging in discussions and even filing tax returns and other documents. The IRS has worked hard to adjust to the pandemic and made significant strides in maintaining an efficient audit process.

The key to a well-organized and just audit process is communication between taxpayers and the IRS. In a welcome development, the IRS Large Business & International (LB&I) Division recently announced that effective October 18, 2021 (and expiring October 18, 2023), IRS employees must grant an LB&I taxpayer’s request for a video meeting in lieu of an in-person or telephone discussion. The video meeting must be through IRS-approved solutions, which is currently WebEx and ZoomGov with a future phase-in of Microsoft Teams planned. Screen sharing is permitted but files may not be transferred on these platforms.

Additionally, the IRS has been offering the Taxpayer Digital Communications (TDC) secure messaging system as another communication method. The TDC system avoids the need to send documents to the IRS via facsimile and allows the transfer of files of up to one gigabyte in a secure messaging environment. The IRS is also working with corporate taxpayers on third-party virtual reading rooms that permit IRS employees to review documents without downloading them.

Practice Point: The use of video meetings and the TDC system are two ways that the IRS and taxpayers can continue to communicate effectively and efficiently in a remote working environment. The IRS is continuing to roll out new programs and initiatives in this area and the McDermott tax team will continue to provide updates as they become available.

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Weekly IRS Roundup May 4 – May 8, 2020

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of May 4 – May 8, 2020. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

May 7, 2020: The IRS issued proposed regulations that provide guidance for estates and trusts clarifying that certain deductions of estates and non-grantor trusts are not miscellaneous itemized deductions. The proposed regulations also provide guidance on determining the character, amount and allocation of deductions in excess of gross income succeeded to by a beneficiary on the termination of an estate or non-grantor trust.

May 8, 2020: The Large Business & International (LB&I) Division of the IRS released an update to the Practice Unit titled Official Versus Free Market Exchange Rate. The update covers determining the appropriate exchange rate used to translate foreign currency amounts. The unit supersedes the previously published Practice Unit with the same title published on December 20, 2016. It was updated to include Argentina as a hyperinflationary economy.

May 8, 2020: The LB&I Division released a Practice Unit on the Overview of IRC 986(c) Gain or Loss Prior to Tax Cuts and Jobs Act of 2017 to address foreign currency gain or loss on the distribution of previously taxed income by a controlled foreign corporation to a US shareholder.

May 8, 2020: The LB&I Division released a Practice Unit on IRC 481(a) Adjustments for IRC 263A Accounting Method Changes. The updated Practice Unit focuses on a change to the treatment of IRC § 263A costs that require the IRS to compute an IRC § 481(a) adjustment and notify the taxpayer that it is treating the accounting method issue as a change in accounting method and also provides examples of such change.

May 8, 2020: The LB&I Division released a Practice Unit on the Foreign Earned Income Exclusion Adjustment. The materials outline the steps on calculating the exclusion adjustment, which include: (1) determining the amount of foreign income excluded; (2) determining the amount of foreign taxes allocable to excluded foreign income; and (3) computing the foreign earned income exclusion adjustment.

May 8, 2020: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Special thanks to Emily Mussio in our Chicago office for this week’s roundup.

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IRS Appeals Large Case Pilot Program Ends

More than three years ago, the Internal Revenue Service (IRS) revised the Internal Revenue Manual to provide IRS Appeals Division (Appeals) with discretion to invite representatives from the IRS Examination Division (Exam) and IRS Office of Chief Counsel (Counsel) to the Appeals conference. The IRS also started a three-year initiative for taxpayers under the Large Business & International (LB&I) Division with cases assigned to Appeals Team Case Leaders (ATCLs). Under the initiative, LB&I personnel from Exam and Counsel were invited to the non-settlement portion of the taxpayer’s Appeals conference to test whether the participation of both parties would assist Appeals in narrowing and resolving complex factual and legal differences.

The IRS announced that the initiative ended on May 1, 2020. The IRS has invited comments from the public about the initiative and its effectiveness. Such comments should be submitted by August 31, 2020.


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Death of the CAP Program?

According to participants in a recent webcast, the Internal Revenue Service’s (IRS) Large Business & International Division (LB&I) is no longer accepting applicants for its Compliance Assurance Process (CAP) program.  CAP is a real-time audit program that seeks to resolve the tax treatment of all or most return issues before the tax return is filed.  The CAP program began in 2005 on an invitation-only basis with 17 taxpayers, and was subsequently expanded to include pre-CAP, CAP and CAP Maintenance components.  Taxpayers and IRS leadership generally praised the CAP program as one of the most successful corporate tax enforcement programs, with surveys showing that over 90 percent of CAP taxpayers reported overall satisfaction with the program.

When the IRS announced its recent shift in the examination process to identifying and focusing on specific areas of risk, as opposed to general return review, the future of CAP became uncertain.  High-ranking IRS officials questioned whether it made sense to continue spending time and resources on CAP taxpayers, who are viewed as the most compliant and transparent taxpayers.  It remains to be seen whether the IRS will phase out the CAP program entirely for currently participating taxpayers.  CAP taxpayers may want to discuss the matter with their Examination Teams to see if they can gain any insight into future developments in this area and to plan ahead if the CAP program is ultimately eliminated.

The end of the CAP program, as well as the end of the continuous audit program, marks a shift in the way that the IRS intends to audit large taxpayers in the wake of very limited resources.  The IRS’s shift to auditing issues may be more efficient, but will likely miss more garden-variety adjustments, like depreciation and expense deductions.

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IRS Updates LB&I Examination Process Guide

Effective May 1, 2016, the Internal Revenue Service (IRS) will begin applying previously announced changes to the Large Business & International (LB&I) Division’s examination process.  Publication 5125 begins by setting forth expectations for the LB&I exam team and the taxpayer or its representatives.  It then addresses IRS expectations regarding refund claims.  Finally, the publication discusses the three stages of the LB&I examination process—planning, execution and resolution—and how the IRS and taxpayers should conduct themselves during each stage.

The IRS had previously released draft publication 5125 in November 2014, which concerned some taxpayers, particularly with respect to the statement that informal refund claims would only be accepted within 30 days of the opening conference.  Final Publication 5125 retains the 30-day period for making informal refund claims, but provides that LB&I will not require a formal claim after the 30-day period if an issue has been identified for examination (unless IRS published guidance specifically requires a formal claim).  Exceptions may also be granted by LB&I senior management.

Publication 5125 also made changes to the examination process based on the recent shift to an issue-based audit approach.  The case manager will have overall responsibility for the case, which may be beneficial to taxpayers involved in recent audits where domestic and international personnel appeared to share responsibility for the conduct of the audit.  Factual and issue development are also heavily stressed, with an emphasis on the information document request (IDR) process and a focused and useful examination plan.  The publication also states that IRS team members are expected to seek the taxpayer’s acknowledgment of the facts and to resolve any disputes prior to the issuance of Form 5701, Notice of Proposed Adjustment.

Taxpayers should review Publication 5125 to familiarize themselves with the current audit process and to ensure that IRS team members are following the guidance.  To the extent an IRS team member is not following the guidance, taxpayers should not hesitate to discuss the matter with the team manager.

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