Each request submitted in accordance with §§ 102.10 through 102.13 will be reviewed by the Assistant Director to determine whether the record requested is an identifiable record within the meaning of 5 U.S.C. 552(a) (3).

(a) If the Assistant Director determines that the record is not identifiable, he will advise the person filing the request and give him a reasonable opportunity to provide additional information to facilitate the identification of the record.

(b) Where the Assistant Director determines that the record is identifiable but should be withheld from inspection in the public interest, he will advise the person filing the request, in writing, that the request has been denied under the provisions of § 102.4.

(a) Except as provided in paragraph (b) of this section, there will be no charge for making an identifiable record available pursuant to § 102.21.

(b) If the Assistant Director determines that a record cannot be made available without significant disruption of normal business activities, he may secure an estimate of the cost of making the record available and require the person filing the request to deposit that amount prior to commencing a search for the record: Provided, however, That where the actual cost of making the record available is significantly more or less than the amount deposited, an adjustment in the form of a supplemental payment or refund, as appropriate, will be made by the Assistant Director.

(c) In determining whether the search for a record will disrupt normal business activities, the Assistant Director may take into account the cumulative effect upon business activities of all other pending requests for records under this part, whether made by the same person or by other persons.

(d) An available record, upon advance payment of the fee prescribed in any reproduction fee schedule established by the Assistant Director, may be reproduced through any available means; however, the Assistant Director may waive such fees if he determines the reproduction cost to be inconsequential.

Subpart E-Appeals

§ 102.40 Appeals.

(a) Any person aggrieved by any determination made or action taken by the Assistant Director pursuant to the provisions of this part may request a review.

(b) An appeal must be filed with the Director of the Cost of Living Council within 30 days of the determination or action to be reviewed.

(c) An appeal may be filed in any form and a letter or other written statement setting forth the pertinent facts will be considered sufficient for this purpose.

(d) The Director of the Cost of Living Council may require the person filing the appeal to present additional evidence or information in support of his request for review.

(e) The Director of the Cost of Living Council will promptly review each appeal and notify the appellant in writing, of his decision.

105.50 Appointment of Hearing Officer. 105.51 Notice of appointment of Hearing Officer.

105.52 Powers and duties of Hearing Officer.

AUTHORITY: The provisions of this Part 105 are issued under the Economic Stabilization Act of 1970, as amended, Public Law 91-379, 84 Stat. 799; Public Law 91-558, 84 Stat. 1468; Public Law 92-8, 85 Stat. 13; Public Law 92-15, 85 Stat. 38; Public Law 92-210, 85 Stat. 743; Executive Order 11627, as amended.

SOURCE: The provisions of this Part 105 appear at 37 F.R. 1002, unless otherwise noted.

Subpart A-General

§ 105.1 Purpose and scope.

(a) This part establishes procedures for (1) appeals from adverse actions by the IRS; (2) action on requests for exception, exemption and reclassification

requests, in whole or in part; (3) public comment on regulations or published rulings of the Council and (4) appointment of Hearing Officers.

(b) If any small business enterprise referred to in section 214(b) (3) of the act files a request application or appeal under the provisions of this part, such request application or appeal will be accorded expeditious handling by affording it priority on the dockets maintained by the Council for the orderly conduct of its business.

(c) This part applies to any person aggrieved by a denial of a requested action by IRS or the Council made on or after the effective date of this part.

§ 105.2

Definitions.

"Act means the Economic Stabilization Act of 1970, as amended.

"Adverse action" means an action by the Council or IRS denying a requested action in whole or in part or an interpretation or ruling issued by IRS which is contrary to the position asserted by the person seeking the interpretation or ruling.

"Council" means the Cost of Living Council established by Executive Order No. 11615 as amended (3 CFR, 1971 Comp., 36 F.R. 15727), or its delegate.

"Exception" means a waiver from the provisions of Part 101 of this chapter directed to an individual firm in a particular case which relieves it from the requirements of a rule, regulation or order issued pursuant to the Act.

"Exemption" means a general waiver of the requirements of all rules, regulations, and orders issued pursuant to the Act.

"Hearing Officer" means a person appointed by the Director of the Council for the purpose of conducting a hearing in accordance with subparts B, C, and D of this part.

"IRS" means the Internal Revenue Service.

"Person aggrieved" means a reclassification within the meaning of § 101.19 or § 101.29 of this chapter.

"Regulation" means a regulation promulgated by the Council which appears in Chapter I of Title 6, Code of Federal Regulations.

§ 105.3 Representation.

Representation under this part shall be in accordance with the rules governing

authority to practice before IRS prescribed in § 401.702 of this title.

§ 105.4 Filing of documents.

A document required to be filed directly with the Council under this chapter is considered filed if it has been received at Council offices, New Executive Office Building, Washington, D.C. 20507. Documents received after regular business hours are deemed filed in Council offices, New Executive Office Building, Washington, D.C. 20507. Documents received after regular business hours are deemed filed in the next regular business day.

§ 105.5 Computation of time.

Except as otherwise provided by law, in computing any period of time prescribed or allowed by this part for the doing of any act, the day of the act, event, or default on which the designated period of time begins to run shall not be counted.

(a) If the last day of the period falls on a Saturday, Sunday, Federal legal holiday, or other nonbusiness day, the period shall be extended to the next day which is not a Saturday, Sunday, Federal legal holiday, or other nonbusiness day.

(b) If the period prescribed or allowed is 7 days or less an intervening Saturday, Sunday, or Federal legal holiday shall not be counted.

(a) All documents required to be served under this part shall be served personally or by registered or certified mail on the person specified in the regulations in this part.

(b) Whenever a person is represented by a duly authorized representative, service on the representative shall constitute service on the person.

(c) A certificate of service shall be filed for each document served.

(d) Service by mail is complete upon mailing.

§ 105.7 Extensions of time.

Where an action is required to be taken within a prescribed time, an extension of time will be granted only upon good cause shown and only where the application is made before the expiration of the time prescribed.

(a) A subpena may require the attendance of witnesses and/or the production of relevant papers, books, and documents in the possession or under the control of the person served.

(b) A subpena may be served by any person who is not a party and is not less than 18 years of age.

(c) The original subpena bearing a certificate of service shall be filed with the Hearing Officer.

(d) A witness subpenaed by any party shall be paid the same fees and mileage as are paid for like service in the District Courts of the United States. The witness fees and mileage shall be paid by the party at whose instance the subpena was issued.

Upon its own initiative or upon the motion of a party, the Council, the Director of the Council or the Hearing Officer may consolidate two or more appeals or request for exception, exemption, or reclassification which involve substantially the same parties or issues which are closely related if it finds that such consolidation will expedite the proceedings.

Subpart B-Appeals from Adverse Actions

§ 105.20 Purpose and scope.

This subpart establishes the rules of the Council governing the conduct of its administrative review proceedings.

(a) The Council has jurisdiction to consider and decide appeals from adverse actions issued by IRS.

(b) The Council may review all relevant questions of law and fact.

(c) Review will be limited to the material evidence in the record before the IRS at the time of the latter's action, except as otherwise directed by the Council.

(a) An appeal must include the following

(1) The name and address of the appellant;

(2) A clear designation of the document as an appeal to the Council;

(3) A copy of the adverse action appealed from;

(4) A concise statement of the facts and contentions; and,

(5) A statement of the grounds for review and relief requested.

(b) Appeals may be accompanied by briefs.

§ 105.25 Screening of appeals.

(a) The Council will determine whether the appeal contains a prima facie showing, the Council may summarily reject the appeal, notifying the applicant of its action, and advise him that he has exhausted his administrative remedies, and that he may seek judicial review under the Act.

(b) Where the Council determines that the appellant has established a prima facie showing, it will proceed in accordance with the provision of § 105.26 through § 105.28.

§ 105.26 Obtaining record.

(a) Upon receipt of a copy of an appeal, the District Director who took the adverse action on the subject of the appeal will forward to the Council its record in the matter.

(b) This record, together with the appeal and briefs, if any, and any statement submitted by the IRS will constitute the record on appeal.

(c) The Council on its own motion may request any additional evidence it deems necessary.

§ 105.27 Hearing.

(a) If the Council in its discretion deems that a hearing is advisable, it will direct that a hearing be held before a Hearing Officer, or where the Council deems it appropriate before the Council in the first instance.

(b) Where a hearing has been directed in accordance with paragraph (a) of this

section, it will be conducted within 10 days after written notice to the appellant at such time and place as the Council may direct.

(c) Where a hearing is conducted in accordance with this section, the applicant may present oral argument and submit such additional documentary evidence as the Hearing Officer deems necessary to fully disclose the position of the appellant.

(d) Within 10 days after the close of the hearing, the Hearing Officer will submit to the Council a report and any recommendation he deems appropriate with respect to the applicant's request for relief.

§ 105.28 Decision by Council.

When administratively feasible, within 10 days of receipt of an appeal within 10 days of receipt of a Hearing Officer's report where a hearing has been directed, or as soon thereafter as practicable

(a) The Council will issue a decision in writing directed to the appellant setting forth its decision, the basis therefor, and an appropriate order.

(b) A copy of the decision and order will be served upon each party to the proceedings.

(c) Where the decision denies the relief requested, in whole or in part, each party will be advised that he may seek judicial review under the Act.

Subpart C-Requests for Exception, Exemption and Reclassification

§ 105.30 Purpose and scope.

(a) Requests for an exception or an exemption are initiated pursuant to Subpart D of Part 401 of this title.

(b) Requests for reclassification must be filed with the Director of the Cost of Living Council, New Executive Office Building, Washington, D.C. 20507.

(c) This subpart establishes the rules of practice of the Council governing initial action on requests for exception, exemption, and reclassification and reconsideration of denials of such requests, in whole or in part.

§ 105.31 Initial action by Council.

After considering the record, the Council will issue a decision in writing directed to the person filing the request for exemption, or reclassification setting forth its decision and the basis therefor, and an appropriate order.

(a) Where the Council grants requests for an exception, exemption, or reclassification it will serve upon the applicant a copy of its decision and order.

(b) Where the Coun cil refuses to grant an exception, exemption, or reclassification in whole or in part, it will

(1) Serve upon the applicant a copy of its decision and order;

(2) Advise him that he may request reconsideration of the Council's denial pursuant to §§ 105.32 through 105.38.

§ 105.32 Scope of review.

The Council shall reconsider its refusal to grant an exception, exemption, or reclassification if the request makes a prima facie showing by the applicant that the Council's initial action was erroneous in fact or in law.

(a) Where the Council determines that the request for reconsideration has failed to make a prima facie showing, the Council may summarily reject the request for reconsideration notifying the applicant of its action, and advise him that he has exhausted his administrative remedies, and that he may seek judicial review under the Act.

(b) Where the Council determines that the appellant has established a prima facie showing, it will proceed in accordance with the provisions of § 105.33 through § 105.38.

§ 105.33 Who may request reconsidera

tion.

Any person who meets the requirements set forth in § 105.32 may request reconsideration by the Council. § 105.34 Where to file.

A request for reconsideration shall be addressed to the Cost of Living Council, New Executive Office Building, Washington, D.C. 20507.

§ 105.35 When to file.

A request for reconsideration must be filed within 10 days of service of the decision and order refusing to grant the exception, exemption, or reclassification. § 105.36 Contents.

A request for reconsideration shall(a) Be in writing and signed by the appellant;

(b) Be designated clearly as a request for reconsideration;

(c) Contain a concise statement of the grounds for reconsideration and the requested relief; and,

(d) Be accompanied by briefs, if any.

(a) If the Council in its discretion deems that a hearing is advisable, it will, within 10 days of receipt of the request for reconsideration, direct that an informal hearing be held before a Hearing Officer.

(b) Where a hearing has been directed in accordance with paragraph (a) of this section, it will be conducted within 10 days after written notice to the appellant at such time and place as the Council may direct.

(c) Where a hearing is conducted in accordance with this section, the appellant may present oral argument and submit such additional documentary evidence as the Hearing Officer deems necessary to fully disclose the position of the appellant.

(d) Within 10 days after the close of the hearing, the Hearing Officer will submit to the Council his report and any recommendation he deems appropriate with respect to the appellant's request for reconsideration.

§ 105.38 Decision by Council.

When administratively feasible, within 10 days of receipt of a request for reconsideration or within 10 days of receipt of a Hearing Officer's report where a hearing has been directed, or as soon thereafter as practicable—

(a) The Council will issue a decision in writing directed to the appellant setting forth its decision and the basis therefor, and an appropriate order.

(b) A copy of the decision will be served upon each party to the proceedings.

(c) Where the decision denies the relief requested in whole or in part, each party will be advised that he is entitled to judicial review under the Act. Subpart D-Public Comments on Cost of Living Council Regulations and Rulings.

§ 105.40 Purpose and scope.

(a) The provisions of 5 U.S.C. 553 shall be followed for the issuance of all regulations or amendments to regulations by the Council, to the extent such provisions apply.

(b) In addition, the Council will accept written comments from members of the public on its regulations or on its published rulings at any time. If in the opinion of the Council such comments warrant a proceeding similar to a rule