College of Law
Offers In Compromise
An offer in compromise is an offer (usually less than the total amount due) made by a taxpayer to
settle his entire outstanding tax liability. IRC § 7122. Generally, the amount of the offer should
be equal to the taxpayer's net worth plus net disposable income for the next five years and must
address all tax liability owed, including liability for tax years for which returns have not in the
past been filed. (As a condition to an acceptable offer, all returns must be filed.) For many
taxpayers who the Clinic represents, the net worth and net disposable income for the next five
years are minimal, and the law prohibits the IRS from rejecting an offer simply because of the
amount of the offer.
A compromise is effective for the entire amount of outstanding assessed liability for taxes,
penalties and interest. All questions of tax liability for the year(s) or period(s) covered by such
offer in compromise are conclusively settled. Neither the taxpayer nor the government can
reopen a compromised case unless there was falsification of information or documents,
concealment of assets, a mutual mistake of a material fact was made that would be sufficient to
set aside or reform a contract, or the taxpayer fails to meet his filing requirements for the five
years following the acceptance of the offer. Tax refunds received during the tax year following
the year in which the offer is submitted are applied to the unpaid tax.
The IRS has set forth its policy for accepting an offer in compromise from a taxpayer in
bankruptcy (See CC-2004-025). Although it is the position of the IRS not to accept an offer
when the taxpayer is in bankruptcy, exceptions are provided. An offer in compromise may be
submitted based on the following:
1. Doubt as to liability
2. Doubt as to collectability
3. Doubt as to collectability, with special circumstances
4. Effective tax Administration
When an offer is submitted, financial information must be disclosed. It is the Clinic's policy to
audit all financial data presented by a client. Whenever possible, student attorneys should obtain
documentary support for all data submitted with an offer. It is essential that the facts presented in
the offer memorandum make sense. Exhibits should support key facts whenever possible.
A taxpayer is required to file a Form 656-L, Offer in Compromise (Doubt as to Liability), when
it is believed that the tax liability is incorrect, while Form 656, Offer in Compromise, should be
filed only when there is doubt as to collectability that the tax liability could ever be paid in full,
or on the basis of effective tax administration (ETA). A taxpayer is not permitted to file offers
concurrently claiming both that the tax liability is incorrect, along with an inability to pay it.
An offer in 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 that the taxpayer 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 non-processable. 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
The taxpayer may withdraw an offer any time before the IRS accepts the offer. The taxpayer
must notify the IRS in writing. The withdrawal is effective upon the IRS' receipt of the notice or
upon the issuance of a letter by the IRS confirming the taxpayer's notice.
An offer is not accepted until the IRS issues a written notification of acceptance to the taxpayer
or the taxpayer's representative. It is also not 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. The taxpayer has 30 days from the date on the rejection letter to request an appeals
conference with the Office of Appeals. The taxpayer may not request an appeal if the offer was
returned because it was non-processable (required tax returns not filed or taxpayer in bankruptcy
proceeding), because taxpayer failed to provide requested information, or because the IRS
determined that the offer to compromise was submitted solely for purposes of delay.
The following must be included in an offer in compromise package sent by the Clinic to the
1. Cover letter and memorandum containing the facts and a discussion of the law.
2. Form 656-B (Booklet with forms), Form 656 (Form alone) or 656-L
3. Form 433A or Form 433B (not needed if Doubt as to Liability)
4. Form 656-A (Application Fee Waiver), Application Fee Waiver Worksheet or $150
5. Supporting documents for Form 433A or B
Basis of an Offer in Compromise
Doubt as to Liability
A taxpayer may submit an offer-in-compromise based on doubt as to liability (“OIC-DATL”) if
there is a genuine dispute as to the existence or amount of the correct tax liability under the law.
Treas. Reg. § 301.7122-1(b)(2). DATL does not exist where the liability has been established by
a final court decision or judgment concerning the existence or amount of the liability. The IRS
may not reject an OIC-DATL because it could not find its administrative file.
The taxpayer must submit a detailed written statement explaining why he/she does not owe the
tax along with Form 656-L. A financial statement (Form 433) does not need to be included with
an offer made on the basis of DATL.
Section 6330(c)(2)(B) allows a taxpayer to challenge the existence or amount of his underlying
tax liability if he neither received a notice of deficiency nor otherwise had an opportunity to
A challenge to the amount of the tax liability made in the form of an OIC-DATL by a taxpayer
who has received a notice of deficiency is a challenge to the underlying tax liability. Because the
taxpayer had his or her chance to challenge that liability, section 6330(c)(2)(B) bars them from
challenging it again.
Similarly, an OIC-DATL will be rejected where the underlying tax liability was previously
stipulated in a Tax Court decision. In this situation also the tax liability can't validly be
considered a "doubtful liability" under the applicable regulation. Sec. 301.7122-1(b)(1); Oyer v.
Commissioner, T.C. Memo. 2003-178, affd. 97 Fed. Appx. 68 (8th Cir. 2004).
Doubt as to Collectability and Doubt as to Collectability with Special
A taxpayer may submit an offer based on doubt as to collectability ("OIC-DATC") or doubt as to
collectability with special circumstances (DATC-SC) if the taxpayer believes that he/she cannot
ever pay the full amount of the tax owed. Treas. Reg. § 301.7122-1(b)(3). DATC and DATC-
SC exists in any case where the taxpayer's assets and income are less than the full amount of the
liability. The taxpayer must submit Form 433-A or 433-B showing his or her current financial
Doubt as to Collectability
A determination of DATC 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
(see Collection Financial Standards). 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.
Where a taxpayer is offering to compromise a liability for which the taxpayer's spouse has no
liability, the assets and income of the non-liable spouse will not be considered in determining the
amount of an adequate offer. The assets and income of a non-liable spouse may be considered,
however, to the extent property has been transferred by the taxpayer to the non-liable 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), property has been
transferred by the taxpayer to the non-liable spouse for the purpose of removing the property
from consideration by the IRS in evaluating the compromise.
Where collection of the taxpayer's liability from the assets and income of the non-liable spouse is
permitted by applicable state law (e.g., under state community property laws), the assets and
income of the non-liable spouse will be considered in determining the amount of an adequate
offer except to the extent that the taxpayer and the non-liable 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 non-liable spouse, and their dependents.
The IRS has provided Standards for use in determining whether there is doubt as to
National Standards have been established for five categories of living expenses: food,
housekeeping supplies, apparel and services, personal care products and services, and
National Standards have been established for out-of-pocket health care expenses
including medical services, prescription drugs, and medical supplies (e.g. eyeglasses,
contact lenses, etc.). The out-of-pocket health care standard amount is allowed in
addition to the amount taxpayers pay for health insurance.
Local Standards have been established for housing and utilities. The housing and utilities
standards are derived from Census and BLS data, and are provided by state down to the
county level. The standard for a particular county and family size includes both housing
and utilities allowed for a taxpayer’s primary place of residence. Housing and utilities
standards include mortgage or rent, property taxes, interest, insurance, maintenance,
repairs, gas, electric, water, heating oil, garbage collection, telephone and cell phone.
Local Standards have been established for transportation. The transportation standards for
taxpayers with a vehicle consist of two parts: nationwide figures for monthly loan or
lease payments referred to as ownership costs, and additional amounts for monthly
operating costs broken down by Census Region and Metropolitan Statistical Area (MSA).
A conversion chart has been provided with the standards that list the states that comprise
each Census Region, as well as the counties and cities included in each MSA. The
ownership cost portion of the transportation standard, although it applies nationwide, is
still considered part of the Local Standards
Doubts as to Collectability, with Special Circumstances
A DATC-SC offer is different from an offer submitted on the basis of Effective Tax
Administration ("ETA") because in the former the amount that could be collected is less than the
full amount of the liability but special circumstances exist that warrant acceptance for less than
the amount of the calculated reasonable collection potential (RCP). An offer submitted on the
basis of ETA is one where the full tax liability could be collected from assets of the taxpayer, but
should not be collected because to do so would cause a hardship to the taxpayer.
Internal Revenue Manual section 18.104.22.168 provides detailed guidance on an offer based on DATC-
SC. That section of the manual refers to the factors to consider and refers you to the factors in the
Manual dealing with an offer submitted on the basis of ETA. The Manual also refers you to
IRC section 6343, specifically Treas. Reg. section 301.6343-1 which provides that a levy can be
released on the basis of economic hardship. I.R.M. 22.214.171.124.1 gives examples and specific
provisions for the IRS employee to look for in making his or her decision.
In IRM 126.96.36.199.1 (5) other factors that may be taken into account when considering an offer
based on DATC-SC are listed that impact the taxpayer’s financial condition other than basic
living expenses, as follows:
the taxpayer’s age and employment status
number, age and health of taxpayer’s dependents
cost of living in area the taxpayer resides
any extraordinary circumstances such as special education expenses, medical catastrophe,
or natural disaster
Each of these factors must be specifically addressed in the OIC memorandum submitted by the
In IRM 188.8.131.52.1(6) factors constituting economic hardship are listed, such as:
The taxpayer is incapable of earning a living because of a long term illness, medical
condition or disability and it is reasonable that the financial resources will be exhausted.
The taxpayer has set monthly income and no other means of support, and the income is
exhausted each month in providing for the care of dependents.
The taxpayer has assets, but is unable to borrow against the equity in those assets, and
liquidation to pay the outstanding tax would render the taxpayer unable to meet basic
These factors also must be specifically addressed in the OIC memorandum.
Frequently, the client has a negative cash flow, no assets with equity except for their vehicle.
Assuming you have thoroughly explored the actual value of the vehicle and there is still some
equity in the vehicle, the IRS will insist that that equity is the minimum amount required for an
offer unless you are able to convince them that the client comes within the provisions of the
Manual dealing with economic hardship or some other provision under the provisions for special
circumstances and effective tax administration.
In dealing with vehicles, several best practice suggestions include: providing evidence of the
inability of the client to borrow against the vehicle and what the cost would be added to the
monthly expenses should the client borrow against the vehicle; pictures of the vehicle; the need
to transport dependent children or other members of the taxpayer’s household in the vehicle, the
taxpayer’s health situation necessitating use of the vehicle.
In preparing an offer, ensure that you clearly state in the opening paragraph of the memorandum
under what ground you are submitting the offer.
Effective Tax Administration
Even though a taxpayer is able to pay the tax, a compromise may be entered to promote ETA
1. Collection of the full liability would cause the taxpayer economic hardship or
2. Compelling public policy or equity considerations identified by the taxpayer provide a
sufficient basis for compromising the liability, and
3. Compromise of the liability will not undermine compliance by taxpayers with the tax
laws [Treas. Reg.
Economic hardship is defined as the inability to pay reasonable basic living expenses. Treas.
Reg. § 301.6343-1. In determining reasonable basic living expenses, the IRS is to consider
relevant information such as the taxpayer's age, employment status and history, number of
dependents, and other exceptional circumstances. Factors to support a finding of economic
hardship include, but are not limited to the following:
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 monthly income, that income is exhausted each month in
providing for the care of dependents with no other means of support; and
3. Although taxpayer has certain assets, the taxpayer is unable to borrow against the equity
in those assets and liquidation of those assets to pay outstanding tax liabilities would
render the taxpayer unable to meet basic living expenses.
Compromise based on equity and public policy will only be accepted if, due to exceptional
circumstances, collection of the full liability would undermine public confidence that the tax
laws are being administered in a fair and equitable manner. The circumstances must be such that
compromise is justified even though a similarly situated taxpayer may have paid his liability in
General: The Form 433 must be consistent with the Memorandum that is submitted as well as
the amount offered. There are two main areas of the 433 that IRS Offer Unit examines in
determining the reasonable collection potential: the assets and liabilities sections and the income
and expense section. The sections cannot be set off against each other. In the event that the
difference in the income and expenses is a negative number that amount will not be set off
against the positive number of the assets.
In determining what is the correct amount to offer as part of the OIC, the amount must be greater
than the collection potential of the equity in all assets and the surplus in monthly income. In
completing the 433 sections listing assets and liabilities be aware that any amount of equity
shown is the minimal amount of an offer. For instance, if the 433 shows cash on hand or bank
balance average of $100.00, then the amount must be at least that amount. In some instances it
is helpful to present more than 3 months of bank statements if the average more clearly reflects
the cash on hand.
In addition, if there is equity in any one asset, the offered amount must include the amount of
that equity or a more careful analysis of the fair market value to reduce the equity is called for.
For clients that are either unemployed or underemployed, the IRS may imputed income to them
under the assumption that they will be employed. In cases where this is the case, refer to the
provisions of I.R.M § 184.108.40.206, "Future Income". These sections provide guidance to IRS
personnel in reviewing offers and other collection actions.
For now a couple of observations: The section is headed "Future Income" 220.127.116.11. The Manual
instructs the examiner to consider the possible future earning potential in judging what the
income of the taxpayer will be. The Manual gives specific examples of child support of the payor
ending or a debt being paid, which would possibly indicate an increase in discretionary income.
The Manual cautions not to automatically add the additional income. We should address any
future discretionary income in the memorandum.
In 18.104.22.168(4), (5) list several situations and how to treat them where there is unemployment or
underemployment. Again, it offers guidance and instructions to the examiner how to treat
these. These sections should be carefully considered and commented on in the memorandum.
For instance, if the taxpayer is temporarily unemployed or underemployed, the IRS will then
average past income in certain circumstances. A best practice is to affirmatively discuss the
client's situation and provide an analysis of past income. Explain how the present and past are
different and why the client will not again reach the prior level of income because of such things
as medical problems, age, etc. The section provides specific examples. You may want to
consider citing the manual and the example in the application of fact to law section of the
memorandum and provide a copy of the excerpt as an exhibit.
I.R.M. section 22.214.171.124(7) Future Income Collateral Agreements sets out the parameters for their
use. In some situations (examples provided in the section)in lieu of averaging past income, the
IRS can accept the current income and enter into an agreement which becomes a part of the offer
whereby the taxapayer agrees to pay a percentage of future income if that future income is over
certain agreed upon amounts and covers the situation where the taxpayer’s income substantially
increases such as the economy improving. We should include an offer to enter into these
agreements in appropriate cases.
The IRS considers whether the tax would be dischargeable in bankruptcy as a factor in
determining the amount of the offer (not whether the client has filed and received a discharge,
but whether if they were to file, the tax would be dischargeable). We should comment on this if
it is applicable.
One other note, the Manual provides that if a client has a roommate, we should not be required to
produce the roommate's income if they are maintaining separate households. However, whether
and to the extent that the roommate contributes to household expenses should be addressed.
As always, prior to citing and authority, including any section of the IRS Manual, , you should
check for any updates.
Rules and Requirements For All Offers
1. All required federal tax returns must be filed
2. Not currently involved with a pending bankruptcy proceeding
3. Form 656 or 656-L
4. Form 433-A or 433-B (not needed if doubt as to liability) accompanies Form 656. This
form requires a substantial amount of supporting documents. See Documents to Support
5. Form 656-A (Application Fee Waiver), Application Fee Waiver worksheet, or $150
6. Written detailed narrative as to the facts and circumstances of the taxpayer explaining
why offer should be accepted.
There are Three Types of Payment Plans
Lump Sum Cash Short-term Periodic Deferred Payment
Period of time to make Probably 60 months 24 months Collection statute
Amount at time of offer $150 + 20% $150 + first periodic $150 + first periodic
Number of subsequent 5 Not specified Not specified
Amount of subsequent Net assets plus 48 Net assets plus 60 Net assets plus net
payments months of net income months of net income income over balance of
if paid over < 5 months collection statute
60 months of net
income if paid over 5
When installments begin When offer accepted When offer made When offer made
Consequences of an Offer
1. The taxpayer must file all required Federal tax returns and pay all required taxes for the
next five years or until the offer amount is paid in full, whichever is longer. Otherwise,
the offer will go into default, and the full amount of the original liability (less any
amounts paid pursuant to the offer) with interest will be reinstated.
2. The statute of limitations for the assessment of tax liability for the tax periods
compromised is suspended.
3. The IRS will keep all payments and credits made, received or applied to the total original
tax liability before the submission of this offer.
4. The IRS will keep any refund, including interest, the taxpayer is entitled to for the tax
year the offer was accepted and the refund for the following tax year.
5. Once the IRS accepts the offer, the taxpayer cannot dispute the amount of tax liability in
court or otherwise.
6. If the taxpayer should default on an accepted offer, then the IRS may also:
1. Immediately file suit to collect the entire unpaid balance of the offer
2. Immediately file suit to collect an amount equal to the original amount of the tax
liability as liquidating damages
3. File suit or levy to collect the original amount of the tax liability without further
notice of any kind
7. The IRS may not levy against the property or rights to property of a taxpayer to collect
the liability that is the subject of the offer during the period the offer is pending, 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.
8. The statute of limitation on collection is suspended while an offer is pending.
Compromise of a Compromise
If the taxpayer is unable to pay the balance of an accepted offer, the IRS has the option to: (1)
temporarily adjust the terms of the offer, (2) formally compromise the existing compromise or
(3) exercise the default provisions of the offer. The Internal Revenue Code authorizes the
Commissioner under § 7122 to accept an offer in compromise of an accepted offer. The new
offer to compromise the original offer must be based on doubt as to collectability.
The taxpayer must send a current financial statement (Form 433-A or 433-B) and a written
proposal of the new offer in letter format to the office where the original offer was submitted.
The letter should be addressed to the Commissioner of the Internal Revenue Service and include
the following information:
1. Name, address and Social Security number or the taxpayer identification number of the
2. Amount proposed and the terms of the payment
3. Acceptance date of the original offer
4. Waiver of any and all claims to amounts due from the United States up to the time of
acceptance to the extent of the difference between the amount offered and the amount of
the claim covered by the offer and
5. Reasons why request is being made to compromise the existing agreement
The compliance agreement (item 8 on Form 656) will remain in effect from the date the original
offer was accepted.
Potential Default Cases
An offer can reach a potential default status in one of two ways: the taxpayer failed to make
timely payments of the amount due based on the terms of the offer or a related collateral
agreement, or the taxpayer has not adhered to the compliance provisions of the offer contract.
The revenue officer has the discretion to grant up to a six-month extension if the taxpayer can
pay the defaulted amount in 6 months or less.
Appeal of Rejected Offer
Typically, several weeks after submission of an Offer in Compromise, the IRS will ask for
supplemental information. Usually, we are informed that the failure to provide the information
will result in rejection of the Offer. It is imperative that you stay in contact with the IRS during
this time and provide the supplemental information timely and accurately. Any supplemental
letters or memoranda must be reviewed by the Clinic Director or Associate Director or
Supervising Attorney prior to mailing.
Once the OIC has been accepted for processing, an Offer Specialist will review the completed
offer. In some cases, the Offer Specialist will determine an ability to pay in excess of what the
client is able to pay. This is usually based on a disagreement as to the value of assets, income or
reported expenses. If you are not able to resolve the dispute with the Offer Specialist, the Offer
will be rejected in writing and you will be afforded 30 days within which to appeal the
determination to reject the offer.
Include in the appeal, the form “Request for Appeal of Offer in Compromise” (Form 13711).
The Appeal Memoranda/letter focuses on the specific issues raised in the rejection letter. The
appeal is sent to the Offer Specialist. It is helpful to provide additional documentation to support
the basis for the client’s appeal. In some cases, the Appeal Memoranda/letter is sufficiently
persuasive and the Officer Specialist will reconsider his or her rejection and offer additional
opportunities to negotiate a new offer amount and thus resolve the case.
If the Offer Specialist is not persuaded to reconsider the rejection, the offer is sent to the Appeals
Office in Holtsville, New York with the materials we provided and any comments the Offer
Specialist wishes to make. Our Appeal Memoranda/letter as a routine practice should state at the
end that we are requesting a face to face conference in Atlanta, Georgia. If we did not so state,
once notice is received that the case is assigned to an Appeals Officer in Holtsville, New York,
the student should immediately request a face to face conference in Atlanta, Georgia. This will
typically take 30-60 days for the case to be transferred to Atlanta and an Appeals Officer in
Atlanta will then contact us to arrange a conference.
Appeals Division of the Internal Revenue Service has begun (effective December 1, 2008) a two-
year pilot program to apply the arbitration and mediation process to Offers and Trust Fund
Recovery Penalty cases. The process is described in Rev. Proc. 2002-44 and Rev. Proc 2006-44.
Atlanta is one of the test sites and thus the Clinic Offers are impacted.
Internal Revenue Code section 7123 provides for non-binding mediation in Appeals on any issue
unresolved at the conclusion of Appeals procedures which occurs when Appeals sustains the
IRS’s offer determination.
Mediation as to offers is limited to factual matters. The Revenue Procedure specifically limits
the scope of Appeals jurisdiction to matters not related to the overall determination whether a
taxpayer’s offer was acceptable. The Appeals Area Director must approve acceptance of all
cases for arbitration and mediation cases.
Types of issues that are subject to this process include:
1. Value of assets;
2. Value of dissipated assets;
3. Taxpayer’s proportionate interest in jointly held assets;
4. Projections of future income based on calculations other than current income
5. The calculation of a taxpayer’s future ability to ay when living expenses are shared with a
non-liable person; and
6. Other factual determinations, such as whether a taxpayer’s contributions into a retirement
savings account are discretionary or mandatory as a condition of employment.
The LITP Newsletter - Allowable expenses
Collection Financial Standards
Offer In Compromise To-Do List
Offer in Compromise supporting document request checklist
Financial Analysis Handbook
Application Fee Waiver
Sample letter requesting documents to support offer
Supporting document checklist
Statement Supporting OIC (include as attachment to Form 656)
Offer in Compromise Cover Letter to I.R.S.
Future Income Memo 126.96.36.199
Offer Payment Cover Letter
Internal Revenue Code
IRC § 7122 Compromises
Treas. Reg. § 301.6343-1(b)(4) Economic Hardship (4/02)
Treas. Reg. § 301.7122-1 Compromises (only old temporary
regulations are available online at this time)
Internal Revenue Manual
Part 5 Chapter 8 Collecting Process: Offers in Compromise
Part 8 Chapter 13 Closing Agreement Manual: Offers in Compromise
IRS Forms and Publications
IRS Revises Offer in Compromise Application Form
IR-2007-50, March 07
Revisions to Form 656, Offer in Compromise
FS-2007-16, March 07
IRS Form 433-A Collection Information Statement for Wage Earners and
Self-Employed Individuals (Fill-in)
IRS Form 433-B Collection Information Statement for Businesses (Fill-in)
IRS Form 656-B Offer in Compromise Package (3-2009)
IRS Form 656 Offer in Compromise Application only (3-2009)
Offer in Compromise (Doubt as to Liability application)
IRS Form 656-L
Request for Appeal of Offer in Compromise
IRS Form 13711
IRS Publication 594 The IRS Collection Process
IRS Publication 1854 How to Prepare a Collection Information Statement