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Exam: Effective Use of Alternative Dispute Resolution Programs in IRS Examinations

Journal of Tax Practice & Procedure

On July 27, 2023, the Internal Revenue Service (IRS) issued IR-2023-136, where the agency requested public input as to the effectiveness of alternative dispute resolution (ADR) programs available to taxpayers. The July Notice focused on four particular post-filing ADR programs. In this article, George Hani and Omar Hussein write that generally, the authority of an Examining Agent to resolve disputes is constrained, unlike the IRS Independent Office of Appeals (Appeals), because Agents are not permitted to consider the hazards of litigation in resolving a dispute with the taxpayer. Instead, the IRS Exam team (IRS Exam team or Exam) is asked to be the fact finder and to apply the law to come to a yes or no conclusion. The authors focus on five common ADR programs available while Exam has jurisdiction over the matter, including Fast Track Settlement (FTS or Fast Track), Early Referral, Accelerated Issue Resolution (AIR), Pre-Filing Agreements (PFAs), and Industry Issue Resolution (IIR). Hani and Hussein conclude that the IRS' recent interest in revitalizing their ADR process bodes well for taxpayers hoping to participate in these programs. The wide variety of programs available suits the needs of many taxpayers and can lead to favorable results. Taxpayers should weigh the costs and risks associated with participating in an ADR program when determining which program is appropriate for their individual situation. However, on the whole, ADR serves as a valuable tool for both tax planning and controversy resolution.