Specific Types of Representation · Representing a taxpayer before Appeals
Request for Appeals consideration
tax year · reviewed 2026-08-19 · I. Ohu
The rule
Appeals is entered by writing. Publication 5 states the rule in one sentence: a written protest must be submitted to request an Appeals conference, and the Appeals employee assigned to the case uses that protest to prepare for it. There are two forms the writing can take, and which one applies is decided by a dollar threshold and by the type of case — not by preference.
A formal written protest is required in all cases unless the taxpayer qualifies for a small case request or another appeal procedure applies. That is the default, and everything else is an exception to it.
The small case request is available where the total amount of tax and penalties for each tax period involved is at or below the threshold in the letter received. The computation includes a proposed increase or decrease in tax including penalties, or a claimed refund; for an offer in compromise it includes the entire unpaid tax, penalty and interest for each period. Where it is available, the taxpayer may either prepare a brief written statement listing the disputed issues and the reasons for disagreement, or complete the appeal request form enclosed with the proposing letter, or use Form 12203, Request for Appeals Review.
The formal written protest is required where the proposed change for any tax period exceeds the threshold — and if more than one period is involved and any single period exceeds it, the formal protest must be filed for all periods. It is also required regardless of amount for employee plan and exempt organization cases, and for partnership and S corporation cases.
Certain matters have their own routes entirely. Collection actions — liens, levies, seizures and installment agreements — go through the special collection appeals procedures described in Publication 1660 rather than through an examination protest.
A limit worth stating to clients before the protest is drafted: as an administrative function of the IRS, Appeals can only consider arguments based on tax law. Publication 5 is explicit that Appeals cannot consider arguments based only on moral, religious, political, constitutional, conscientious or similar objections to the assessment or payment of federal taxes.
Current figures
| Route | Threshold |
|---|---|
| Small case request | $25,000 or less of total tax and penalties for each tax period involvedTY2026 |
| Formal written protest required | more than $25,000 of proposed change to total tax and penalties for any tax periodTY2026 |
The threshold is stated in the letter the taxpayer received; read it rather than assuming. Employee plan, exempt organization, partnership and S corporation cases require a formal protest regardless of amount.
How it works in practice
Read the letter for the deadline, and send it to the address in the letter. Publication 5 directs the protest to the IRS address in the letter received, within the time limit that letter specifies. There is no universal protest deadline — a thirty-day letter says thirty days, other letters say otherwise — and a protest sent to a general service centre address rather than the one in the letter can miss the window while sitting in the right building.
A formal protest has a fixed content list. It must begin with a statement that the taxpayer wants to appeal the changes the IRS proposed, and must include all of the following:
- Name, address and a daytime telephone number.
- A list of all disputed issues, the tax periods or years involved, the proposed changes, and the reasons for disagreeing with each issue.
- The facts supporting the taxpayer’s position on each disputed issue.
- The law or authority, if any, supporting the position on each disputed issue.
- A penalties of perjury statement, followed by the taxpayer’s or representative’s signature underneath it.
Points 3 and 4 are separate for a reason, and protests routinely blur them. Appeals settles on the hazards of litigation, which is an assessment of how the facts and the law would fare in court. A protest that argues the law without pinning it to the record, or recites the facts without identifying the authority they satisfy, gives the Appeals officer nothing to weigh.
The taxpayer’s perjury statement and the representative’s are different. A taxpayer signs: “Under penalties of perjury, I declare to the best of my knowledge and belief, the information contained in this protest and accompanying documents is true, correct, and complete.” A representative submitting the protest must use one of two different statements, chosen according to whether they have personal knowledge of the information stated. The personal-knowledge version declares that the representative submitted the protest and that, to the best of their personal knowledge and belief, the information is true, correct and complete. The no-personal-knowledge version declares that the representative submitted the protest and has no personal knowledge concerning the information stated in it. Choosing between them is a real decision, and signing the taxpayer’s own statement as a representative is simply the wrong statement.
Fast Track Settlement is a different door. Publication 5 describes an expedited process available in certain cases where the disputed issue is fully developed and the IRS agrees to participate. The case stays in the examiner’s jurisdiction while a specially trained Appeals employee serves as a neutral. The taxpayer may withdraw at any time and retains the usual appeal rights on anything unresolved. It is requested by telling the IRS employee handling the case, not by protest.
A protest is not only for examinations. Publication 5 lists the actions its protest guidance covers: denial of certain penalty abatement requests, denial of innocent spouse relief, rejection of an offer in compromise, a determination that a penalty is owed, and determinations affecting tax-exempt status or the qualification of a retirement plan.
Two years, one over the line
Solveig Mbeki receives a letter proposing adjustments for two years: about 9,000 dollars for the first and about 31,000 dollars for the second. Her representative prepares a brief small case statement for the first year and a formal protest for the second, reasoning that each period should be handled on its own terms.
That is wrong, and it is the specific trap in the rule. Where more than one tax period is involved and any period exceeds the threshold, a formal written protest is required for all periods involved. The small case route is closed to the whole matter. The correction costs nothing if it is made before filing and costs a returned protest and lost days if it is made afterwards.
The protest with no authority in it
Emeka Hartvigsen’s protest runs to nine pages describing what happened, in careful chronological detail, and closes by saying the examiner’s conclusion is unreasonable. It cites nothing.
Appeals settles on hazards of litigation, and there is nothing in the protest for the officer to assess. The required content is a list of disputed issues with reasons, the facts supporting the position on each issue, and the law or authority, if any, supporting the position on each issue — two distinct items. The rewrite keeps the chronology but reorganises it issue by issue, and under each issue states the controlling provision and how the facts satisfy it. The substance did not change; the protest became usable.
The wrong perjury statement
An enrolled agent prepares and signs a protest for a client whose records she has never seen; the figures come from the client’s bookkeeper. She signs the taxpayer’s declaration — “to the best of my knowledge and belief, the information contained in this protest … is true, correct, and complete.”
She has declared personal belief in facts she has no basis to believe, and the correct alternative was available and easy: the representative’s no-personal-knowledge statement, which declares that she submitted the protest and has no personal knowledge concerning the information stated in it. The distinction is not a formality. Due diligence is required in preparing and filing documents relating to IRS matters (Circular 230 § 10.22(a)(1)), and a declaration of personal knowledge that the practitioner does not have is exactly the kind of statement the diligence rule is about.
How this has changed
The mechanics of the protest have been stable for decades; what has moved is the framing around them. The Taxpayer First Act of 2019 renamed the function the Independent Office of Appeals and placed its mission in the Code at IRC § 7803(e)(3) — Publication 5 opens by reciting that mission almost verbatim, which is a useful reminder that the publication now restates a statute rather than describing an administrative practice.
The representative-specific penalties of perjury statements, with the split between personal knowledge and no personal knowledge, are the change most likely to catch a practitioner trained on older material: a single taxpayer declaration was the familiar form, and protests still arrive with representatives signing it. Fast Track Settlement and the other Appeals mediation programmes have expanded over the same period and are now described in Publication 5 alongside the ordinary protest, with Publication 4167 as the fuller reference.
Exam focus
The reliable question is the one about when a formal written protest is not required: the answer is that the taxpayer qualifies for a small case request. Know that the small case threshold is applied per tax period, that any period over the threshold forces a formal protest for all periods, and that entity cases require a formal protest regardless of amount. Know the five required contents of a formal protest, and in particular that facts and supporting law are listed separately. The existence of Form 12203 as an alternative to a written statement in a small case is worth knowing; its contents are not.
Check yourself
1. In which circumstance may a taxpayer avoid filing a formal written protest?
A. The taxpayer has income below a stated amount B. The taxpayer qualifies for the small case request procedure C. The taxpayer agrees not to take the case to the Tax Court D. The taxpayer is represented by a practitioner holding a power of attorney
Answer: B. A formal protest is required in all cases unless a small case request or another special appeal procedure applies.
2. A proposed adjustment covers three years. Two are well below the small case threshold and one is above it. What is required?
A. A small case request for the two low years and a formal protest for the third B. A formal written protest for all three years C. A small case request for all three years D. Separate appeals filed in three different offices
Answer: B. If any tax period exceeds the threshold, a formal written protest is required for all periods involved.
3. Which is not a required element of a formal written protest?
A. The facts supporting the taxpayer’s position on each disputed issue B. The law or authority supporting the position on each disputed issue C. A proposed settlement percentage D. A penalties of perjury statement with a signature beneath it
Answer: C. The protest states the taxpayer’s position; it does not open with a number.
4. An enrolled agent submits a protest based entirely on figures supplied by the client’s bookkeeper, which the agent has not verified. Which declaration is appropriate?
A. The taxpayer’s own “to the best of my knowledge and belief” statement B. The representative statement declaring no personal knowledge of the information stated C. No declaration, because the representative did not prepare the underlying records D. The representative statement declaring personal knowledge, since the agent prepared the protest
Answer: B. Two representative statements exist precisely so that the declaration matches the practitioner’s actual knowledge.
5. A client wants the protest to argue that federal income tax is unconstitutional. What should the representative advise?
A. Include it as an alternative argument; it costs nothing B. Appeals cannot consider arguments based only on constitutional or similar objections C. Appeals will refer the argument to Chief Counsel for a ruling D. The argument must be made first in order to preserve it for court
Answer: B. Appeals considers arguments based on tax law; moral, religious, political, constitutional and conscientious objections are outside what it may consider, and some are frivolous positions carrying a penalty.
Change log
- Initial draft against Publication 5 (Rev. 4-2021).