Part III · Resolution — When Things Go Wrong · pp. 357–374

Chapter 19: Appeals and Litigation — the Settlement Forum

By Paul D. Diaz, EA, MBA · Chapter summary · Updated September 20, 2026

Appeals is where most IRS disputes settle through disciplined, risk-adjusted negotiation grounded in what would actually happen in court—not in who is right in the abstract.

Overview

This chapter explains how the IRS Independent Office of Appeals functions as a pre-litigation settlement forum, organizationally separate from examination, where settlement officers evaluate disputes based on what would likely happen in court rather than on what the examining agent concluded. Appeals uses a hazards-of-litigation framework that weighs the strength of the law, the quality of the facts, litigation costs, and judicial temperament to arrive at risk-adjusted settlements. Most examination disputes are resolved here without going to trial.

The chapter walks through the full progression from examination to potential litigation: how to prepare and file a written protest, how to conduct yourself in an Appeals conference, how to negotiate using litigation hazards, how to document a settlement, and when to bypass Appeals and proceed to court. It also compares the three litigation forums—Tax Court, District Court, and the Court of Federal Claims—and addresses the strategic role of the EA or CPA across all stages, including when to bring in trial counsel.

In This Chapter

• 19.1 Appeals as a Settlement Forum — What Appeals is, how hazards-of-litigation analysis drives settlement, and when to choose Appeals over immediate litigation
• 19.2 Preparing the Written Protest and Case File — Protest requirements, drafting strategy, supporting documentation, and the case transfer and review process
• 19.3 The Appeals Conference — Strategy, Negotiation, and Documentation — Conference logistics, opening strategy, negotiation tactics, and documenting the settlement
• 19.4 When to Litigate and How to Choose a Forum — The path from failed Appeals settlement to litigation, forum selection among Tax Court, District Court, and Court of Federal Claims, and the strategic role of litigation
• 19.5 Conclusion — The Settlement Continuum and TBOR in Action — How examination, Appeals, and litigation form a continuum, with the Taxpayer Bill of Rights as the governing thread

Key Terms

• IRS Independent Office of Appeals — An administrative forum organizationally separate from examination and collection where settlement officers resolve disputes based on litigation hazards before court becomes necessary
• Hazards-of-litigation analysis — The structured assessment Appeals officers use to estimate the probability the IRS would win at trial, considering the strength of law, quality of facts, litigation costs, and judicial temperament
• Written protest — The formal document a taxpayer files within 30 days of the examination closure letter to request Appeals review, containing facts, legal arguments, and a perjury statement
• Form 870-AD — The standard Appeals settlement document in which the taxpayer agrees to the settlement amount and waives refund claims for the settled year and issues
• Form 906 (Closing Agreement) — A more formal and binding settlement document than Form 870-AD, requiring IRS Counsel approval, used when maximum finality is needed
• Statutory notice of deficiency (90-day letter) — The formal IRS notice that triggers the taxpayer's right to petition Tax Court within 90 days
• Small Tax Case (S case) — A streamlined Tax Court track for disputes under $50,000 with no published decision and no right of appeal
• Trident Advisor — The practitioner who integrates tax planning, examination defense, and Appeals or litigation representation across all phases of a tax controversy

Who Needs This Chapter

Taxpayers and representatives who disagree with proposed examination adjustments and need to understand how to seek independent administrative review, negotiate a settlement, or decide whether and where to litigate.

Questions This Chapter Answers

Why do most disputes settle at Appeals?

Appeals is independent of examination and settles on hazards of litigation — what would actually happen in court — not on defending the agent.

What is hazards-of-litigation analysis?

A structured estimate of trial odds weighing law, facts, costs, and judicial temperament into a risk-adjusted settlement number.

Do I need a written protest?

For larger cases, yes — the formal document framing facts, law, and argument that opens the Appeals door.