Can the IRS Appeals Officer talk to my auditor at all?

Yes, about ministerial, administrative, or procedural matters such as scheduling or transferring the file. What Rev. Proc. 2012-18 restricts is discussion of the strengths and weaknesses of the issues without giving you a chance to participate, to the extent the communication appears to compromise Appeals independence.

Am I entitled to see the examiner's rebuttal to my protest?

You should be given access to what the originating function sends Appeals about the merits. If a rebuttal or memo discussing the issues reached Appeals and you have not seen it, ask for a copy and for time to respond. That is the ordinary cure under the ex parte rules.

What can I do if an ex parte violation happened?

Raise it with the Appeals Officer and manager in writing. Under IRM 8.1.10.6, most breaches are cured by disclosing the communication and giving you time to respond, and some may warrant reassignment to a new Appeals employee. The remedy is in Appeals discretion and is not appealable.

Do the ex parte rules apply to Collection Due Process hearings?

Yes. Rev. Proc. 2012-18 covers communications between Appeals and originating functions, which include Collection. A settlement officer in a CDP case should not be discussing the merits privately with the revenue officer who proposed the levy.

IRS Appeals Ex Parte Rules (Rev. Proc. 2012-18)

When your case moves from the examiner to IRS Appeals, it moves to a different office with a different job. The examiner proposed an adjustment. Appeals decides what the dispute is worth. That only works if the examiner does not get a private second chance to argue the case.

The ex parte rules exist to prevent exactly that. They are not well known, and they are one of the more useful tools a represented taxpayer has.

Where the rules come from

Congress made Appeals independence part of the statute. IRC 7803(e) establishes the Internal Revenue Service Independent Office of Appeals and charges it with resolving controversies without litigation, on a basis that is fair and impartial to both the government and the taxpayer.

The operating rules are in Rev. Proc. 2012-18. IRM 8.1.10, which implements it, says the revenue procedure took effect May 15, 2012, superseded Rev. Proc. 2000-43, and controls if the IRM ever conflicts with it.

What counts as an ex parte communication

IRM 8.1.10.1.5 defines it as a communication between an Appeals employee and employees of other IRS functions, without the taxpayer or representative being given an opportunity to participate. "Other functions" means the originating offices: Examination, Collection, and campus functions.

The core prohibition, in IRM 8.1.10.4, is that these communications are prohibited to the extent they appear to compromise Appeals' independence. In particular, Appeals may not discuss the strengths and weaknesses of the issues or positions with the originating function unless you have a chance to participate.

In plain English: the Appeals Officer cannot call the examiner and ask, "How good is your evidence on the travel expenses, really?" without inviting you to the call.

What is allowed

The rules are not a wall. IRM 8.1.10 recognizes several categories that are not prohibited:

Ministerial, administrative, or procedural matters. Scheduling, file transfers, confirming that a document was received, and similar housekeeping are permitted (IRM 8.1.10.4.1.1).
Database inquiries. Routine look-ups in IRS systems involve no dialogue with the originating function and are not treated as communications (IRM 8.1.10.2.1).
Communications within Appeals. An Appeals Officer talking to a manager or another Appeals employee is not ex parte (IRM 8.1.10.2.1.1).
Taxpayer Advocate Service. TAS is not an originating function (IRM 8.1.10.2.1.2).
Anything you were invited to. If Appeals gives you a reasonable opportunity to participate and you decline, the ex parte rules do not apply to that communication (IRM 8.1.10.5).

The examiner's rebuttal to your protest is a good example of how this works in practice. The examiner may prepare one for the file, but you are entitled to see what goes to Appeals. If a rebuttal reaches the Appeals Officer and you never received it, ask why.

Why this matters to your case

Appeals settles cases by weighing the hazards of litigation. That weighing should happen on a record both sides can see. If the examiner can add arguments privately, the record you are negotiating against is incomplete, and you cannot rebut what you never heard.

Here's the part most people miss: the rules also protect you from an Appeals Officer who simply defers to the examiner. Independence is a statutory value, not a courtesy. When a settlement officer seems to be repeating the examiner's position without engaging with yours, ask directly whether there have been communications with Examination about the merits.

Waiving the rules, on purpose

Sometimes you want Appeals to talk to the examiner. A technical question about how an adjustment was computed may be resolved faster that way. IRM 8.1.10.5.1 allows a taxpayer to waive the rules for a single communication or for all communications. Do it in writing, and do it narrowly. A blanket waiver is rarely necessary.

What happens if the rules are broken

The remedy is administrative, and Appeals controls it. Under IRM 8.1.10.6:

The Appeals employee must notify a manager when a breach occurs.
Most breaches can be cured by promptly telling you, sharing the substance of the communication, and giving you a reasonable time to respond.
Some breaches may warrant reassignment of the case to a different Appeals employee.
The remedy is within the sole discretion of Appeals, the deciding official is the Appeals Area Director or equivalent manager, and that decision is not appealable.

So raise the issue early and in writing. Ask for a copy or summary of the communication and time to respond. If the contact went to the merits and shaped the Appeals Officer's view, ask for reassignment.

Collection cases too

The rules apply in collection matters as well, including Collection Due Process hearings and the Collection Appeals Program. A settlement officer reviewing a revenue officer's levy decision should not be getting the revenue officer's private commentary on your finances. Normal file transmittals are fine. Private advocacy is not.

A practical checklist

Ask the Appeals Officer at the outset what the file contains and whether an examiner or revenue officer rebuttal is in it.
Request copies of any rebuttal or transmittal memo that discusses the merits.
If the Appeals Officer mentions information you never provided, ask where it came from.
Put any ex parte concern in a short, specific letter citing Rev. Proc. 2012-18.
Keep your tone professional. The goal is a fair record, not a fight with the person deciding your case.

How to raise a concern without starting a war

You are asking the person deciding your case to look at their own conduct. Do it in a way that keeps the conversation productive. A short letter usually works best, and it should include:

A plain description of what you observed, such as a reference in a conference to an argument you never saw in writing.
A citation to Rev. Proc. 2012-18 and a request that Appeals confirm whether any communication with the originating function addressed the merits.
A request for a copy or written summary of any such communication.
A request for a reasonable period to respond before Appeals relies on it.

Copy the Appeals team manager. Avoid accusations. Most of the time the answer is benign, and a written record is what protects you when it is not.

Also remember what the rules do not do. They do not stop Appeals from reading the examiner's workpapers in the administrative file, and they do not entitle you to a new Appeals Officer every time you disagree with one. They regulate private advocacy, not the existence of an unfavorable record.

Let's talk

Procedural rights only help if someone asserts them at the right time. If your case is headed to Appeals, or is already there and something feels off, call (813) 229-7100. Let's talk.

General information, not legal advice. Reading this page does not create an attorney-client relationship. Statutes, regulations, IRS procedures, and dollar thresholds change; confirm current rules before acting.

The Ex Parte Rules: Keeping IRS Appeals Independent