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                                               Your Appeal Rights and 

                                               How to Prepare a Protest  

                                               if You Disagree

The IRS Independent Office of Appeals Mission
To resolve Federal tax controversies without litigation on a basis which is fair and impartial to both the 
Government and the taxpayer, promotes a consistent application and interpretation of, and voluntary 
compliance with, the Federal tax laws, and enhances public confidence in the integrity and efficiency of the 
Service.

Introduction
This publication explains actions you should take   Determination affecting tax-exempt status
prior to requesting an administrative appeal of     Determination affecting qualification of a 
your tax case if you don’t agree with the Internal   retirement plan
Revenue Service’s (IRS) proposed changes or 
                                                   These actions result in a proposed change to your 
findings. It also provides an overview of your 
                                                   Federal tax liability, a denial of your request to 
administrative appeal rights within the IRS and a 
                                                   change your Federal tax liability, or a change to 
summary of your rights to have your case heard in 
                                                   your reporting requirements. This publication refers 
the United States Federal Courts.       
                                                   to all these actions as proposed changes.
While this publication mainly focuses on disputes 
                                                   The Taxpayer Bill of Rights states you have the 
resulting from an examination of a tax return or 
                                                   right to appeal an IRS decision in an independent 
claim for refund or credit, the information on how 
                                                   forum. You are entitled to a fair and impartial 
to prepare a protest also applies to disputes 
                                                   administrative appeal of most IRS decisions, 
resulting from many other types of IRS actions,    including many penalties, and have the right to 
including, but not limited to the following:       receive a written response regarding the IRS 
 Denial of a request for certain penalty          Independent Office of Appeals’ (hereinafter, 
  abatement                                        Appeals) decision. You also generally have the right 
                                                   to take your case to court. For more information on 
 Denial of a request for innocent spouse relief 
                                                   the Taxpayer Bill of Rights, see Publication 1, Your 
 Rejection of an offer in compromise              Rights as a Taxpayer.
 Determination that you owe a penalty

  Publication 5 (Rev. 3-2021)  Catalog Number 46074I  Department of the Treasury  Internal Revenue Service  www.irs.gov

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Additional Resources

For some types of cases, the appeals process gov/forms-instructions or call 800-TAX-FORM
and available court actions are different than a (800-829-3676) for IRS Publications.
tax deficiency or claim disallowance case, which
If your case involves… Refer to…
are overwhelmingly the most common disputes A change in tax-exempt Publication 892, How to Appeal
in Appeals. See www.irs.gov/appeals for more status an IRS Determination on Tax-
Exempt Status
information. The letter that you received from the
An employee plans Publication 1020, Appeal
IRS proposing the changes may contain important examination change Procedures Employee Plans
information about the appeal rights available to Examinations
you for your specific type of case, including how An employment tax Publication 5146, Employment
examination change Tax Returns: Examinations and
to request an appeal and what will happen if you Appeal Rights
decide not to appeal. Disqualification of a Publication 5153, Appeal
retirement plan Procedures: Adverse
If your case involves one of the issues listed in Determination Letter on
the table on this page, refer to the appropriate Qualification of a Retirement Plan
publication for specific guidance. Visit www.irs.

If You Don’t Agree
Before you request an appeal, make sure that If you don’t agree with the changes proposed
you have provided the IRS employee handling by the IRS, you may contact the IRS employee
your case with any information, documents, and identified in the letter you received to discuss
explanations that the employee requested, or that the issues. Generally, if you cannot reach an
you would like the IRS to consider. If you have agreement with the IRS employee, you may
not submitted this information, contact the IRS request a discussion with the employee’s
employee identified in the letter you received and supervisor. If you still don’t agree after your
provide this information within the specified time attempts to resolve the matter with the IRS
limit. If you provide new information or raise new employee and/or supervisor, you may request Fast
issues to Appeals that the IRS has not previously Track Settlement (FTS) if your case qualifies, or an
considered, it may first need to be considered administrative appeal with Appeals. See Protests
by an IRS employee, which will likely delay on page 3 for more information on how to request
the resolution of your case. See The Appeals an administrative appeal.
Conference on page 5.

If You Do Nothing…

And Your Case Is… The IRS Will…
An examination of your income, estate Send you a notice of deficiency allowing you a limited time to petition the U.S. Tax
(and generation-skipping transfer), gift (and Court for redetermination. If you don’t timely petition the U.S. Tax Court, the IRS will
generation-skipping transfer), or certain excise send you a bill for the amount due.
taxes or penalties, with a proposed deficiency
An examination of your employment tax Send you a bill for the amount due relating to issues not reviewable by the U.S.
liabilities Tax Court. In certain instances, you may receive a Notice of Employment Tax
Determination Under IRC 7436 which affords you a limited time to petition the U.S.
Tax Court. If you don’t timely petition the U.S. Tax Court, the IRS will send you a bill
for the amount due relating to the issues included in that notice. Refer to Publication
5146, Employment Tax Returns: Examinations and Appeal Rights; and Publication
3953, Questions and Answers About Tax Court and the Notice of Employment Tax
Determination Under IRC § 7436.

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And Your Case Is… The IRS Will…
A denial of a claim for refund Send you a notice of claim disallowance explaining that you have a limited time to
file suit with the appropriate U.S. District Court or the U.S. Court of Federal Claims.
You may have already received this notice.

A proposal of a trust fund recovery penalty or Send you a bill for the amount due.
certain information return penalties
A rejection of an offer in compromise (OIC) Continue collection action after the expiration of a 30 day period following the
based on doubt as to liability. rejection, as warranted.
A denial of a penalty abatement Close your case without abating the penalty.

A denial of a request for innocent spouse relief Generally send you a final determination letter regarding your request allowing you a
limited time to petition the U.S. Tax Court.

A determination on tax-exempt status or on Send you a final adverse determination letter. In general, if you do not file a protest
qualification of a retirement plan to the proposed adverse letter, you cannot appeal the final adverse determination
letter. In addition, you must have exhausted your administrative remedies to be able
to seek a declaratory judgment in court.

Appeals Mediation Programs
In certain IRS cases, you may request an prepare for the Appeals conference. Refer to Notice
expedited dispute resolution process called Fast 609, Privacy Act Notice, for more information about
Track Settlement (FTS). The disputed issue must how the IRS uses information you provide.
be fully developed and the IRS must agree to Send your protest to the IRS address in the letter
participate in this process. During FTS, your case you received within the time limit specified in the
remains in the examiner’s jurisdiction while a letter. A formal protest is required in all cases
specially trained Appeals employee serves as a unless you qualify for a small case request, as
neutral party using dispute resolution techniques discussed below, or another appeal procedure.
to facilitate an agreement between you and the
Small Case Request
IRS. You may withdraw from the FTS process at
If the total amount of tax and penalties for each
any time. You will retain your usual appeal rights if
tax period involved is $25,000 or less in the letter
any issues remain unresolved.
you received, you may make a small case request
To request FTS, inform the IRS employee handling
instead of filing a formal written protest. See under
your case that you are interested in FTS. If the
“Formal Written Protest” for cases that are not
examination division agrees to participate in this
eligible for small case requests. In computing
process, they will work with you to jointly complete
the total amount, include a proposed increase or
the necessary form to start the process.
decrease in tax (including penalties), or claimed
See Publication 4167 or the Appeals Mediation refund. For an offer in compromise, the entire
- Alternative Dispute Resolution (ADR) website amount for each tax period includes total unpaid
at www.irs.gov/appeals/appeals-mediation- tax, penalty and interest due. For a small case
programs for more information on FTS and other request, you may either:
Appeals’ ADR programs.
Prepare a brief written statement listing the
Protests disputed issues and why you disagree, or
You must submit a written protest to request Complete the appeal request form included
an Appeals conference. The Appeals employee with the letter you received proposing the
assigned to your case will use your protest to change, if applicable, or you can use Form
12203, Request for Appeals Review.

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Formal Written Protest                                  disagree with each issue.
A formal written protest is required if the proposed   Facts supporting your position on each 
change to the total amount of tax and penalties         disputed issue.
for any tax period is more than $25,000 in the 
                                                       Law or authority, if any, supporting your 
letter you received. The total amount includes 
                                                        position on each disputed issue.
the proposed increase or decrease in tax and 
penalties or claimed refund. If more than one tax      Penalties of perjury statement, as follows:
period is involved and any tax period exceeds the     “Under penalties of perjury, I declare to the best 
$25,000 threshold, you must file a formal written     of my knowledge and belief, the information 
protest for all periods involved. For an offer in     contained in this protest and accompanying 
compromise, include total unpaid tax, penalties       documents is true, correct, and complete.”
and interest due. A formal written protest is also    Note: Representatives who submit the protest 
required in the following cases:                      must use the applicable penalties of perjury 
 Employee plan and exempt organization cases         statement below, based upon whether they have 
  regardless of the dollar amount.                    personal knowledge regarding the information 
 Partnership and S Corporation cases                 stated in the protest and accompanying 
  regardless of the dollar amount.                    documents:
                                                           Personal Knowledge: 
 In all other cases, unless you qualify for 
                                                            “Under penalties of perjury, I declare that I 
  the small case request procedure, or other 
                                                            submitted the protest and accompanying 
  special appeal procedures, such as requesting 
                                                            documents, and to the best of my personal 
  Appeals consideration of liens, levies, seizures, 
                                                            knowledge and belief, the information 
  or installment agreements. See Publication 
                                                            stated in the protest and accompanying 
  1660, Collection Appeal Rights, for more 
                                                            documents is true, correct, and complete.”
  information on special collection appeals 
  procedures.                                              No Personal Knowledge: 
                                                            “Under penalties of perjury, I declare that 
In your formal protest, include a statement that you 
                                                            I submitted the protest and accompanying 
want to appeal the changes proposed by the IRS 
                                                            documents, and I have no personal 
and include all of the following:
                                                            knowledge concerning the information 
 Your name, address, and a daytime telephone               stated in the protest and accompanying 
  number.                                                   documents.”
 List of all disputed issues, tax periods or years    Your (or your representative’s) signature under 
  involved, proposed changes, and reasons you           the penalties of perjury statement.

IRS Independent Office of Appeals
Appeals is an independent function of the IRS,        As an administrative function of the IRS, Appeals 
separate from the division of the IRS that proposed   can only consider your arguments if they are 
the changes. It is the only level of administrative   based on tax laws. Appeals cannot consider 
appeal within the IRS. Appeals employees fairly       your arguments if they are based only on moral, 
and impartially settle disputes between taxpayers     religious, political, constitutional, conscientious, or 
and other divisions of the IRS by considering the     similar objections to the assessment or payment of 
arguments made by both sides, and then applying       Federal taxes.
the relevant tax law (including court decisions and   The IRS is legally required to assess proposed tax 
other legal authorities) to the facts of the case.    by a certain date in most cases. We refer to this 
Most disputes can be settled informally at the        date as the statute of limitations. Generally, before 
Appeals level without litigation.
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an examination case is received in Appeals, IRS provide a properly completed power of attorney
policy for originating functions may require greater to the IRS before the representative can receive
than 365 days remain on the statute of limitations. or inspect confidential information. You can use
The IRS will ask you to agree to extend this date Form 2848, Power of Attorney and Declaration
if additional time is needed to meet the required of Representative, or any other properly written
number of days. If you choose not to extend the power of attorney or authorization for this purpose.
date, Appeals will not accept your case. Note that If you can’t afford representation, a Low Income
docketed U.S. Tax Court cases do not have the Taxpayer Clinics (LITC) may be able to represent
statute of limitation concerns that non-docketed you if you qualify. In addition, LITCs also provide
cases do. assistance to taxpayers who speak English as a
second language to help taxpayers understand
The Appeals Conference their rights and responsibilities. You can find
Appeals conferences are held in an informal more information about LITCs in Publication
manner. Appeals will contact you and/or your 4134, Low Income Taxpayer Clinic List. LITCs are
authorized representative to arrange a conference independent from the IRS. You can get copies of
at a convenient time. Form 2848 or Publication 4134 from www.irs.gov,
You may represent yourself at your appeals an IRS office, or by calling 800-TAX-FORM (800-
conference, or you may appoint a person 829-3676).
authorized to practice before Appeals to You or your authorized representative should be
represent you such as an attorney, certified public fully prepared to discuss all disputed issues and
accountant, or enrolled agent. See Circular No. the reasons you disagree with each issue at the
230, Regulations Governing Practice Before the conference. If you submit new information or
Internal Revenue Service, for more information raise a new issue requiring additional analysis,
on qualifications to practice before Appeals. You Appeals will generally return the case to the
may include a person who doesn’t meet these originating IRS office for its determination
qualifications in your appeals conference as a on the new information. You will receive the
witness, but they may not represent you before originating office’s comments, have an opportunity
Appeals. to respond, and can continue to pursue your
If you want your representative to participate in appeal rights.
an appeals conference without you, you must

Court Actions
If you do not appeal your case within the IRS, or U.S. Tax Court
were unable to reach a settlement with Appeals, You may be able to file a petition with the U.S. Tax
you may be able to take your case to one of the Court to review the changes proposed by the IRS.
following courts if you satisfy the court’s procedural The U.S. Tax Court is generally a “prepayment”
and jurisdictional requirements: forum, which means you can petition the U.S.
United States Tax Court Tax Court before making full payment, but its
jurisdiction is limited. You generally cannot petition
United States Court of Federal Claims
the U.S. Tax Court unless you have received a
United States District Court in the judicial
notice or determination letter that informs you that
district where you reside or have your principal
you have the right to do so. However, you may also
place of business
petition the Tax Court if you have not received a
You can obtain rules from each court. These notice or determination involving: a determination
courts are independent judicial bodies and have no of tax-exempt status under IRC 7428 if the IRS
connection with the IRS. has not made a determination after 270 days; the

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abatement of interest if the IRS has not mailed a Caution: If the Tax Court determines that your case
final determination within 180 days of a claim for is intended primarily to cause a delay, or that your
abatement under IRC 6404; or an innocent spouse position is frivolous or groundless, the court can
relief request if the IRS has not issued a final impose a penalty against you of up to $25,000 in its
determination letter after six months since filing decision.
Form 8857, Request for Innocent Spouse Relief.
District Court and the U.S. Court of
You must file your petition with the U.S. Tax Court Federal Claims
within the timeframe specified in the notice, usually You can take your case to your U.S. District Court
90 days (or 150 days if the notice is addressed to a or the U.S. Court of Federal Claims, but generally
person outside the United States). There is a filing only after you have fully paid the amount and timely
fee, but the fee may be waived if you qualify. The filed a claim for refund with the IRS. If you are a
law sets the time to file your petition; the IRS or the nonresident alien, you may seek relief in the U.S.
Court of Federal Claims, but you generally cannot
U.S. Tax Court cannot change this time period. You
take your case to a U.S. District Court because
have only the timeframe specified to petition the
you are not a resident of any United States judicial
court, even if you continue to talk to IRS examiners
district.
or Appeals.
If you filed a timely claim for a refund with the IRS
You can get more information about the U.S. Tax
but haven’t received a written response on your
Court’s procedures and other matters on the
claim within 6 months from the date you filed it, you
court’s website at www.ustaxcourt.gov or by can file suit for a refund in your U.S. District Court
writing to: or the U.S. Court of Federal Claims. Certain types
U.S. Tax Court of cases, such as those involving some employment
tax issues or manufacturers’ excise taxes, can only
Attn: Office of the Clerk of the Court
be heard by these courts.
400 Second Street, N.W.
Washington, DC 20217-0002 Note: You have 2 years from the date of the notice
of claim disallowance to file a refund suit. Appeals’
If you timely petition the Tax Court, and you did not
consideration of a disallowed claim doesn’t extend
previously appeal your case within the IRS, you will
the 2-year period for filing suit. However, it may be
normally have an opportunity to attempt settlement
extended by mutual agreement.
with Appeals while you are waiting for your trial. The
You can get information about procedures for filing
Tax Court will still follow its normal procedures to
suit in either court on their websites:
schedule your case for trial, but you may not need
to appear at trial if you settle your case before the U.S. District Courts website: www.uscourts.
trial date. If unable to settle, you may appear pro gov
se (by yourself) at Tax Court or by a representative Court of Federal Claims website: www.cofc.
admitted to the Tax Court that you appointed. uscourts.gov

Innocent Spouse Appeals
If you are the spouse who filed Form 8857, the requesting spouse (or former spouse). Your
Request for Innocent Spouse Relief, requesting appeal request must be submitted in writing. You
innocent spouse relief (the “requesting spouse”), can use Form 12509, Innocent Spouse Statement
you can generally request an appeal if the IRS of Disagreement, to explain why you disagree
denies your request in whole or in part. If you are with the IRS’s proposed determination concerning
a non-requesting spouse, you can request an your request or your (current or former) spouse’s
appeal if the IRS grants innocent spouse relief request for innocent spouse relief.
in whole or in part to your requesting spouse (or If you are the requesting spouse, you can petition
former spouse). However, a non-requesting spouse the U.S. Tax Court to review your request for
cannot appeal an IRS decision to deny relief to innocent spouse relief if:
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1. Six months have passed since you filed If you petition the U.S. Tax Court for relief, the Tax
Form 8857 and you have not received a final Court’s scope of review will be limited to the IRS’s
determination letter from the IRS; or administrative record established at the time of the
2. You have received a final determination letter determination (the date of the final determination
denying relief in full or in part and you petition the letter), and any newly discovered or previously
U.S. Tax Court no later than 90 days after the IRS unavailable evidence. Therefore, it is important for
sent you that letter. both the requesting and non-requesting spouse to
provide all relevant, available evidence to the IRS
before it issues its final determination.

Pass-Through Entity Appeals (BBA)
The Bipartisan Budget Act of 2015 (BBA), as agreed or unagreed. In response to the NOPPA,
amended, repealed the Tax Equity and Fiscal the partnership may request modification and an
Responsibility Act of 1982 (TEFRA) partnership opportunity for a modification Appeals hearing.
procedures and electing large partnership However, in a modification Appeals hearing,
provisions and replaced them with an entirely Appeals will not reconsider an issue that was
new centralized partnership audit regime. BBA is previously disputed and considered by Appeals.
generally effective for tax years beginning 1/1/2018, If a Notice of Final Partnership Adjustment (FPA)
with allowances for early elect-in for tax periods is issued, the partnership may elect to “push-out”
beginning after 11/2/2015. an imputed underpayment to its partners to take
If the entity and tax year(s) at issue are covered into account, file a petition for judicial review of the
by BBA, the entity has appeal rights. At the adjustments, or both.
end of the Appeals process, Appeals will issue See www.irs.gov/businesses/partnerships/bba-
a Notice of Proposed Partnership Adjustment partnership-audit-process, for more information.
(NOPPA) for all proposed adjustments, whether

Recovering Administrative and Litigation Costs
You may be able to recover your reasonable Reasonable amounts for court costs or any
administrative and litigation costs if you are administrative fees or similar charges by the
the prevailing party and if you meet the other IRS.
requirements. For example, you must exhaust your Reasonable expenses of expert witnesses.
administrative remedies within the IRS including
participating in the Appeals process, and you must Reasonable costs of studies, analyses, tests,
not unreasonably delay the administrative or court or engineering reports that are necessary to
proceedings. prepare your case.

Administrative costs are costs incurred for To qualify as a prevailing party, you must
administrative proceedings on or after the
Substantially prevail on the amount in
date you receive the first letter of proposed
controversy or the most significant issue(s)
deficiency giving you an opportunity for review
presented, or obtain a final judgment that is
in Appeals, the Appeals decision letter, or the
less than or equal to a “qualified offer” that the
notice of deficiency, whichever is earliest.
IRS rejected, AND
Litigation costs are costs incurred for court
Meet the applicable net worth and size
proceedings.
requirements.
Recoverable litigation or administrative
Net worth and size limitations:
costs may include:
For individuals, estates, or trusts, net worth
In general, attorney fees that do not exceed
cannot exceed $2,000,000.
a maximum hourly rate, which changes from
year to year. Fees in excess of the maximum Charities and certain cooperatives must not
can be awarded in limited circumstances. have more than 500 employees.

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  A partnership, corporation, association, unit of       of whether the Government’s position was 
   local government, or organization must have a          substantially justified will also consider the 
   net worth of $7,000,000 or less and must not           outcome of the same issue(s) or position(s) in other 
   have more than 500 employees.                          cases the Government has already litigated.
  In TEFRA partnership proceedings, both the             In the context of administrative proceedings, 
   partnership and the requesting partner must            Appeals will determine who is the prevailing party. 
   meet relevant net worth and size limitations.          You must file your claim for administrative costs 
                                                          no later than the 90th day after the IRS mails (or 
You are not the prevailing party if:
                                                          otherwise furnishes) you the final determination of 
The United States establishes that its position was 
                                                          tax, penalty or interest. This means that you may 
substantially justified. If the IRS does not follow 
                                                          receive administrative costs from the IRS without 
applicable published guidance, the United States 
                                                          going to court. If your application for administrative 
is presumed to not be substantially justified. This 
                                                          costs is denied, you may appeal the determination 
presumption is rebuttable. Applicable published 
                                                          to the U.S. Tax Court no later than the 90th day 
guidance means regulations, revenue rulings, 
                                                          after the IRS mailed you the denial letter.
revenue procedures, information releases, notices, 
announcements, and, if they are issued to you,            In the context of court proceedings, a court will 
private letter rulings, technical advice memoranda        decide who is the prevailing party. You must 
and determination letters. The determination              follow applicable court rules when filing your claim 
                                                          for costs.

Taxpayer Advocate Service (TAS) Assistance
The TAS is an independent organization within the         working as it should. If you believe you are eligible 
IRS that helps taxpayers and protects taxpayers’          for TAS assistance or would like more information, 
rights. TAS can offer free help if your tax problem       call the TAS at 877-777-4778, TTY/TDD 800-829-
is causing a  financial difficulty, you’ve tried but are  4059, go to www.taxpayeradvocate.irs.gov, or 
unable to  resolve your issues with the IRS or you        refer to Publication 1546, Taxpayer Advocate 
believe an IRS system, process or procedure isn’t         Service – We Are Here to Help You.

Report IRS Actions                                        Small Business Ombudsman
You can confidentially report misconduct, waste,          A small business entity can participate in the 
fraud, or abuse by an IRS employee to Treasury            regulatory process and comment on enforcement 
Inspector General for Tax Administration (TIGTA)          actions of IRS by calling 888-REG-FAIR (888-
by calling 800-366-4484 (800-877-8339 for TTY/            734-3247),TTY/TDD 800-877-8339, or by visiting 
TDD). You can remain anonymous.                           https://www.sba.gov/ombudsman.

For General Information:
Appeals Website:        IRS Website:                      IRS Forms and Publications:
www.irs.gov/appeals     www.irs.gov                       www.irs.gov/forms-instructions 
                                                          800-TAX FORM (800-829-3676)
IRS Toll Free Phone Numbers: 
800-829-1040 (for individuals)                            Taxpayer Advocate Service:
800-829-4933 (for businesses)                             TaxpayerAdvocate.irs.gov
800-829-4059 /TDD                                         877-777-4778

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