Ezel / IRS Rulings / 1109025
Chief Counsel Advice 1109025 Released March 4, 2011 Advice

CCA 1109025: An SS-8 determination does not always establish when a payroll error was ascertained

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This page covers one taxpayer's ruling from 2011, which can't be cited as precedent. Ask about your situation and see what the current Code and IRS guidance say, with citations.

Currency note: this determination was released in 2011
Statutory amendments, regulation changes, court decisions, or later IRS guidance may have changed the analysis since then. Treat this page as historical context, not current tax advice. Verify current law before relying on any specific rule, threshold, or position mentioned here.
Not precedent. Under 26 U.S.C. § 6110(k)(3), this written determination may not be used or cited as precedent. It resolved one taxpayer's situation on its specific facts, and identifying details were redacted by the IRS before release. The official IRS release (linked on this page as a PDF) is the authoritative source.
About this page: The plain-English summary and ruling snapshot below were written by Ezel based on the official IRS release. The full text is the IRS's own document.
View official IRS release (PDF)

Plain-English summary

Chief Counsel advice addressed when a taxpayer ascertains an employment-tax error for purposes of an interest-free adjustment. An SS-8 determination provides the date the error was discovered, but that date does not always control. The error is ascertained when the taxpayer has enough information to correct it, which may require identifying similarly situated employees or reviewing records for a Form 941-X. A taxpayer seeking reconsideration because of additional facts or arguments may have a later ascertainment date. The taxpayer must be able to show when the error was ascertained.

Ruling snapshot

  • Question: Does the date of an SS-8 determination always establish when a payroll error was ascertained?
  • Outcome: Advice given.
  • Key authorities: IRC § 3121; the regulations governing interest-free adjustments; Form 941-X; Publication 4341.

Full text (IRS public release)

ID: CCA_2011020911403641 Number: 201109025
Release Date: 3/4/2011
Office: -----------------------------
UILC: 3121.04-01

From: ---------------
Sent: Wednesday, February 09, 2011 11:40:38 AM
To: -------------------------------------
Cc: ------------------------------------------------
Subject: RE: SS-8 & Interest Free Adjustments

To close the loop here. I agree with -------- and think ---- has a good point as well To summarize

The SS-8 determination will provide the date the error is discovered, but the standard under the regs is
when the error is ascertained. An error is ascertained when the TP has sufficient information to correct it.
The X forms use the word “discover” rather than ascertain, but the instructions clarify that a TP discovers
an error when it has sufficient information to correct it. Accordingly, the SS-8 determination will not
always control the ascertain date (e.g., the TP may need to determine which EEs are similarly situated
and/or go through records to get information to fill out the 941-X), though some TPs may have sufficient
information at that point. In cases where the TP seeks a reconsideration because of additional facts or
arguments, that would be very relevant to the date the error is ascertained. As in all cases, TP
would need to be able to show when the error was ascertained for making the interest free adjustment.
The Pub 4341 acknowledges that other facts can come into play when it says “in most cases, the date the
error was discovered will be the date of our determination letter.”

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