[Date]
[Examiner name and ID / Group manager name / Appeals officer name]
Internal Revenue Service
[Address shown on the report or letter]
[Fax number or Document Upload Tool reference]
Re: Request for the IRC 6751(b) written supervisory approval record
Taxpayer: [Client name] TIN: [SSN or EIN]
Form [1040 / 1120 / 1065], tax year(s): [Years]
Report or notice: [Form 4549 / Letter 950 / Letter 525 / notice of deficiency] dated [Date]
Penalties proposed: [List each penalty with its Code section, year and amount, e.g. IRC 6662(a) accuracy-related penalty (substantial understatement), 2023, $4,210; alternative position: IRC 6662(a) negligence]
Dear [Name]:
I represent the taxpayer under the enclosed Form 2848. IRC 6751(b)(1) requires that the initial determination of each penalty be personally approved in writing by the immediate supervisor of the individual making the determination, or a designated higher level official, before assessment, and Treas. Reg. 301.6751(b)-1 fixes the deadline by the procedural posture of the penalty. IRM 20.1.1.2.3 requires the approval to be dated and retained in the case file and to cover all tax years and all penalties. So that the taxpayer can evaluate the proposed penalties, please provide the following for each penalty and each alternative penalty position listed above:
- The written supervisory approval, in whatever form it was made: the Civil Penalty Approval Form (Lead Sheet 300), SAIN 011 Lead Sheet, Form 4700, signed comment on Form 5464, Form 5701, email, memorandum to file or other writing (IRM 20.1.5.2.1.1), showing the approver’s name, the date of approval and the penalties and years covered. [For a campus correspondence examination: the CEAS non-action note recording the supervisor's approval, with its date.]
- If the approval was signed by an acting supervisor, the Form 10247, Designation to Act, or other designation in effect on the approval date (IRM 4.10.6.4.4.2).
- The name and title of the individual who first proposed each penalty and of the approving official, and whether the approver had responsibility to review that individual’s penalty proposals without an intermediary’s approval (Treas. Reg. 301.6751(b)-1(a)(3)(iii)).
- The date and form of the first written communication to the taxpayer proposing each penalty, including any Form 5278, Form 4549, Letter 915, Letter 950, Letter 525, Letter 5153 or 60-day letter, and the date any notice of deficiency was or will be mailed.
- If the IRS takes the position that any penalty was automatically calculated through electronic means under IRC 6751(b)(2)(B), the basis for that position, and confirmation whether an IRS employee considered the taxpayer’s response dated [Date] before assessment or the notice of deficiency (Treas. Reg. 301.6751(b)-1(a)(3)(vi)).
- The computation of each penalty required by IRC 6751(a), showing the name of the penalty, the Code section and the computation.
- For any penalty first raised in Appeals or by Counsel, the written approval of the Appeals or Counsel supervisor and its date (Treas. Reg. 301.6751(b)-1(d)).
- The assessment date of any penalty already assessed.
If no written approval exists for any penalty or alternative position, please say so in writing. [If a response to the report is due: The taxpayer's response to the report is due [date]; please provide these records before that date or confirm an extension so the response can address them.]
[Appeals variant: Because this case is in Appeals, please provide the approval documents from the administrative file. If Appeals obtains any additional document or explanation from Examination on this point, the taxpayer requests a copy under the ex parte communication rules of Rev. Proc. 2012-18.]
[FOIA fallback paragraph, delete unless sending to GLDS: This is a request under the Freedom of Information Act, 5 U.S.C. 552, for records pertaining to the requester's own tax matters. Please provide the [year] examination administrative file for the taxpayer identified above, including the Civil Penalty Approval Form or other penalty approval documentation, Form 10247 designations in effect, CEAS case notes, the examiner's activity record and workpapers for the penalty issues, and the penalty computations. The requester is an 'other' requester and agrees to pay duplication, search and review fees up to $[amount]; please notify the requester before exceeding that amount. The requester's handwritten signature appears below, and a copy of the requester's driver's license is enclosed. Form 2848 authorizing the representative to receive these records is enclosed.]
Please send the records to me at the address below [by mail / by fax / through the Document Upload Tool]. Thank you.
Sincerely,
[Representative name, credential, CAF number]
[Firm, address, phone, fax, email]
[For the FOIA version: handwritten signature of the taxpayer, printed name, date]
Enclosures: Form 2848; copy of the report or notice; [copy of the taxpayer's response to an automated notice, if item 5 applies; copy of driver's license for the FOIA version]
When to send it
Send this letter as soon as a report proposes a penalty that is not exempt from IRC 6751(b), and again in Appeals if the record is still incomplete. IRC 6751(b)(1): “No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate.” The exceptions in IRC 6751(b)(2) are the IRC 6651, 6654 and 6655 additions, the IRC 6662(b)(9) and (10) additions, and penalties automatically calculated through electronic means; everything else needs approval, including each alternative penalty position (IRM 20.1.5). The rules, the 2024 regulation and the cases are on supervisory approval under IRC 6751(b), and the timing checker tests the dates once you have them.
The rule the record proves or disproves
Treas. Reg. 301.6751(b)-1(f): “The rules of this section apply to penalties assessed on or after December 23, 2024.” For those penalties approval is due before assessment, or on or before the mailing of a notice of deficiency, FPAA or FPA that includes the penalty, or by the date the Commissioner asks the court to determine a penalty raised after the petition (IRM 20.1.1.2.3.1). The writing can be anything: “No signature or particular words are required so long as the circumstances of the writing reflect that it was intended as approval” (Treas. Reg. 301.6751(b)-1(a)(3)(v)), which is why item 1 asks for the approval in whatever form it was made.
For earlier assessments the deadline depends on the circuit. Chai v. Commissioner, 851 F.3d 190 (2d Cir. 2017), held that the statute “requires written approval of the initial penalty determination no later than the date the IRS issues the notice of deficiency (or files an answer or amended answer) asserting such penalty.” The Tax Court in Clay v. Commissioner, 152 T.C. 223 (2019), and Belair Woods, LLC v. Commissioner, 154 T.C. 1 (2020), required approval before the first formal communication of the penalty, usually the 30-day or 60-day letter, which is why item 4 asks for every communication date. Laidlaw’s Harley Davidson Sales, Inc. v. Commissioner, 29 F.4th 1066 (9th Cir. 2022), required approval “before the relevant supervisor loses discretion” or assessment, and Kroner v. Commissioner, 48 F.4th 1272 (11th Cir. 2022), held that the IRS complies “so long as a supervisor approves an initial determination of a penalty assessment before it assesses those penalties.” Item 8, the assessment date, tells you which regime applies.
IRC 7491(c) provides that “the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty, addition to tax, or additional amount imposed by this title.” Frost v. Commissioner, 154 T.C. 23 (2020), held that this includes producing evidence of compliance with section 6751(b)(1); once the IRS produces a timely approval form, “P must come forward with contradictory evidence suggesting that R’s agent did not comply with I.R.C. sec. 6751(b)(1).” The record this letter requests shows whether that evidence exists before the case is docketed, and it is the only route for an entity, which gets no help from IRC 7491(c).
What each item asks for and why
| Item | Why it is there | Source |
|---|---|---|
| 1. The approval writing | IRM 20.1.5.2.1.1 says approval may be in any written form but recommends Lead Sheet 300 and the other listed forms; on CEAS cases the approval is a non-action note that in a deficiency case must be input before the pre-assessment notice | IRM 20.1.5.2.1.1 |
| 2. Form 10247 | An acting supervisor with an approved designation counts, and the IRM says “A copy of Form 10247 must be maintained in the case file.” | IRM 4.10.6.4.4.2 |
| 3. Who proposed and who approved | The regulation defines the immediate supervisor as anyone with responsibility to review the proposal without an intermediary's approval; a signature by someone outside that chain is open to challenge | Treas. Reg. 301.6751(b)-1(a)(3)(ii), (iii) |
| 4. First communication date | Fixes the Clay and Belair Woods deadline for pre-regulation penalties, and shows whether a Letter 5153 or Form 5278 preceded approval | Clay; Belair Woods |
| 5. Electronic-means position | The exception ends when a taxpayer challenges the penalty or tax and an employee considers the response before assessment or the notice of deficiency | Treas. Reg. 301.6751(b)-1(a)(3)(vi); IRM 20.1.1.2.3.2 |
| 6. Computation | IRC 6751(a) requires each penalty notice to include “the name of the penalty, the section of this title under which the penalty is imposed, and a computation of the penalty” | IRC 6751(a) |
| 7. Appeals or Counsel approval | A penalty first raised after the petition needs its own approval by the raising attorney's supervisor | Treas. Reg. 301.6751(b)-1(d) |
| 8. Assessment date | Decides whether the regulation or the circuit case law governs | Treas. Reg. 301.6751(b)-1(f) |
Two details from IRM 4.10.6.4.4.2 are worth checking when the form arrives: “Under no circumstances should the form reflect the Standard Employee Identifier (SEID) as the signature,” and “The signed penalty approval must be saved in the electronic case file,” so a form that cannot be produced was not retained as the IRM requires.
Where to send it
- During the examination, send it to the examiner with a copy to the group manager, by fax or the Document Upload Tool. The IRS FOIA page confirms the informal route: “If you are working directly with an IRS employee on an open tax case, you can request information from the file directly from them.”
- In Appeals, send it to the Appeals officer for the administrative file. Anything Appeals obtains from Examination on the point is subject to the ex parte rules.
- If ignored, send the FOIA version to GLDS Support Services: the FOIA Public Access Portal, fax 877-891-6035, or Internal Revenue Service, GLDS Support Services, Stop 93A, Post Office Box 621506, Atlanta, GA 30362 (IRS FOIA guidelines). The guidelines require a handwritten signature for IRC 6103 records, a copy of the requester’s driver’s license or sworn statement of identity, a specific description such as “my examination file for tax year 2019,” a fee commitment and the requester category. See reading the exam file under FOIA and the FOIA request template.
Using the answer
Compare the approval date with the deadline that applies, and confirm the writing names every penalty, alternative position and year; IRM 20.1.1.2.3 says “The approval must cover all tax years and all penalties.” Then state the result as its own issue in the protest or petition: the penalty, the first communication date, the approval date and signer, and the gap. Where no approval exists, say so and ask Appeals to concede the penalty. Section 6751(b) affects only the penalty, not the tax, and approval is also required to remove a penalty (IRM 4.10.6.4.4.3). The accuracy-related penalty page covers the substantive defenses that run alongside.
Mistakes
- Asking only for the Civil Penalty Approval Form. The approval can be an email or memo; ask for the writing in whatever form.
- Forgetting alternative positions. IRM 20.1.5 requires written approval for both.
- Treating a Form 5278 as the first formal communication. IRM 4.10.8.2.3 lets the examiner share proposed adjustments at an appointment before approval; the regulation's test is an offer to agree to a specific penalty in a specific amount.
- Letting the response deadline pass while waiting. Ask for an extension in writing or respond on the merits and reserve the issue.
Questions practitioners ask
Does the IRS have to give me the approval form during the exam?
The IRM requires it to be in the file and, for mailed reports, IRM 4.10.8 lists a copy of the signed Civil Penalty Approval Form among the report contents. If it is not provided informally, FOIA is the enforceable route.
What if the penalty came from a CP2000?
Ask item 5. Under Treas. Reg. 301.6751(b)-1(a)(3)(vi) and IRM 20.1.1.2.3.2, an automated penalty needs approval only after the taxpayer challenges the penalty or the tax and an employee considers the response. A response asking only for more time does not count (Example 6).
Can a corporation use IRC 7491(c)?
No. The burden of production applies to the liability of an individual. An entity must obtain the record and raise the defect itself.
Is an approval signed after the 30-day letter fatal?
For a penalty assessed on or after December 23, 2024, no; the regulation measures against assessment or the notice of deficiency. For an earlier assessment it depends on the circuit: fatal under Clay in the Tax Court generally, not under Chai (Second Circuit) or Laidlaw's and Kroner (Ninth and Eleventh).