Joint service manual 55

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Circular Regulations Governing Practice before the Internal Revenue Service is an effective tool to reference when working with procrastinating representatives. The standards of conduct, the scope of authority, the circumstances, and the conditions, are the same as, or comparable to, the standards governing licensed and enrolled practitioners under Circular Regulations Governing Practice before the Internal Revenue Service.

The unenrolled preparer will be expected to recognize questions, issues, and factual situations of such difficulty as to require additional expert assistance and to suggest to the taxpayer that they seek such assistance. An unenrolled preparer shall act in such a manner as to not commit any act of disreputable conduct.

Disreputable conduct includes, but is not limited to, the items contained in section 31 CFR An unenrolled preparer shall not neglect or refuse to submit records or information in any matter before the Internal Revenue Service upon proper and lawful request and shall not interfere, or attempt to interfere, with any proper and lawful efforts to obtain information, unless the preparer believes in good faith and on reasonable grounds that the information is privileged. An unenrolled preparer shall exercise due diligence in preparing or assisting in preparing, approving, and filing of returns, documents, affidavits, or other papers relating to Internal Revenue Service matters.

The preparer will also exercise due diligence in determining 1 the correctness of oral and written representations made by the preparer to the Service, and 2 the correctness of representations made by the preparer to the client with reference to any matter administered by the Internal Revenue Service.

Any examining officer, or other Internal Revenue Service officer or employee who has reason to believe that an unenrolled preparer's conduct has been or is such as would render the preparer ineligible to appear as the taxpayer's representative before the Internal Revenue Service, shall communicate this information to the Area Director of the taxpayer. Examiners need to be firm and resourceful when communicating with taxpayers and representatives, when appropriate.

There are a variety of tools available to the examiner to address examination delays. Typically, a variety of actions need to be taken when faced with delays. The examiner's ability to recognize the problem and properly document the case file is essential. The ability to exercise good judgment cannot be overemphasized. Still, there are times when a more aggressive approach to procrastination and untimely IDR responses needs to be taken by examiners and managers. Some of the delays in an examination are attributable to the Internal Revenue Service.

For example, the priorities and assignments of the examiner can change. When appropriate, examiners need to take a firmer position with respect to allowing additional time for information and allowing a representative to postpone an appointment without a valid reason. Examiners need to maintain activity records and document all contacts, tactics, and misrepresentations made by representatives and taxpayers.

As each procrastinating tactic occurs, it must be timely documented in the activity record. These contemporaneously documented repetitive actions will then form the basis for pursuing a representative bypass or summons, if necessary. Problem cases need to be aggressively worked. Pending IDRs must be current and when responses are overdue or insufficient, action needs to be taken immediately. IDRs must be as specific as possible, including a due date or follow-up appointment date. This may help deter uncooperative representatives who provide partial responses with the expectation the examiner will settle for insufficient documentation or support.

Although the examiner is obligated to recognize the taxpayer's representative, taxpayers must be kept informed of all stages of the examination. In instances of abuse of process, the examiner and group manager may consider issuing an administrative summons. If the representative and the taxpayer will not consent to an interview with the taxpayer for those cases in which the examiner determines it is appropriate, the examiner and group manager may strongly consider issuing a summons.

A taxpayer does not need to refuse a request to produce records or information before a summons can be issued. However, if there is a refusal, whether direct or indirect, it must be properly established and clearly documented by the examiner. To determine whether or not a summons may be issued, the examiner may take the following into consideration:.

Vital information is required for a material matter, and cannot be obtained from any other source within a reasonable period of time, and without extraordinary effort.

A decision to use the summons based on the information above will provide reasonable assurance that the summons can be successfully enforced if it becomes necessary. Also, if necessary, the examiner must remind the representative of duties and obligations under Circular An accountant's or other return preparer's workpapers used to prepare the return including workpapers reconciling the books to the return and adjusting entries are included under IRC a , Authority to Summon, etc. IRC , Confidentiality Privileges Relating to Taxpayer Communications creates a statutory confidentiality privilege for communications from a taxpayer to any "federally authorized tax practitioner" concerning "tax advice.

Although this communications privilege is partly defined by reference to, and is no broader than, the attorney-client privilege, it is clearly a different privilege, created solely by statute, and defined as much by the statutory language as by reference to the common law attorney-client privilege. The confidentiality protection applies to communications that would be considered privileged if they were between the taxpayer and an attorney and that relate to non-criminal:.

Tax advice - Advice given by a federally authorized tax practitioner acting within the scope of authority to practice before the Internal Revenue Service. Written communications between the tax practitioner and a director, shareholder, officer, employee, agent, or representative of a corporation that promotes the direct or indirect participation of the corporation in any tax shelter as defined in IRC d 2 C ii ;. Communication between the taxpayer's tax practitioner and a third-party who provides information about the taxpayer to the practitioner US vs.

Ackert, F. This confidentiality privilege cannot be used in any administrative proceeding with an agency other than the Internal Revenue Service. The taxpayer can assert the confidentiality privilege in any "non-criminal" tax matter before the Internal Revenue Service and any "non-criminal" tax proceeding in federal court with respect to such matter.

A case is a "non-criminal tax matter before the Internal Revenue Service" until the matter is referred to the Criminal Investigation Division for the assignment of a special agent to the matter. Once the matter ceases to be a non-criminal tax matter, the taxpayer may no longer assert the statutory privilege created under IRC , Confidentiality Privileges Relating to Taxpayer Communications.

Thus, the Internal Revenue Service may obtain the information previously withheld. Request a written statement from the Federally authorized tax practitioner providing the reasons why the privilege is being asserted; and,.

IRC c , Representatives Holding Power of Attorney states that an examiner, with the manager's approval, may notify the taxpayer directly that such officer or employee believes such representative is responsible for unreasonable delay or hindrance of an Internal Revenue Service examination or investigation of the taxpayer. If taxpayer notification does not resolve the delays, then by-pass procedures outlined below permit the employee to contact the taxpayer directly and to request any information necessary to complete the examination.

The representative continues to represent the taxpayer; and copies of all correspondence issued to the taxpayer, must still be sent to the representative. The by-pass procedures do not constitute a disbarment or a suspension of the practitioner. The taxpayer still has a statutory right to representation per IRC c. The representative impedes or delays an examination by failing to submit the taxpayer's records or information requested by the employee.

The representative impedes or delays an examination by failure to return telephone calls and written correspondence. If a trend is noted and the examination is being hindered because of the representative, the examiner will notify the group manager of the representative's actions. The manager will ensure that all reasonable efforts have been taken to work directly with the representative and that the case file sufficiently details the facts that support how the representative has delayed or hindered the examination.

Prior to initiating by-pass procedures, the following steps must be taken, depending on the circumstances:.

If the employee has not done so already, the taxpayer will receive copies of all written correspondence to the representative. This includes all IDRs. Either Letter A, Warning for Bypass Procedures for Preparers covered under Circular , attorneys, CPAs, enrolled agents and enrolled actuaries or Letter B, Warning for Bypass Procedures for Unenrolled Preparers, must be prepared and sent to the representative from the group manager advising the representative of responsibilities under Circular and conveying advance notice of a possible by-pass because the representative is violating Circular Copies of prior document requests, a list of outstanding items and a brief chronology of events must be attached to the letter.

A copy of the letter will not be sent to the taxpayer. The taxpayer will not be sent a copy of the warning letter. A copy of the letter must be sent to the Territory Manager, and the Area Return Preparer Coordinator must be contacted and advised of the possible by-pass.

If the representative delays or refuses to provide the information requested after repeated attempts, a by-pass request must be prepared for the territory manager's signature.

The decision to seek a by-pass rests with the employee and group manager. In taking such an action, the following items must be considered:. It is imperative that the case file be properly documented with the efforts made by the employee to obtain the information and the actions or lack thereof of the representative.

It is suggested that when the employee first suspects uncooperative behavior all appointments and document requests must be confirmed in writing. As previously mentioned, prior to initiating the by-pass procedures, the group manager may contact the representative in writing and advise him of his responsibilities under Circular Regulations Governing Practice before the Internal Revenue Service and explain the consequences of his continued conduct.

The permission to by-pass must be obtained from the territory manager. A letter to the representative from the territory manager must be prepared. Letter C, Final Bypass, must be used for this purpose. The letter must outline the facts and circumstances which constitute the basis for the by-pass. The letter is prepared by the employee with the assistance of the area return preparer coordinator, as needed.

This letter must be routed through the examiner's group manager and the area return preparer coordinator to the territory manager for signature. The employee may not circumvent the representative until the territory manager approves the by-pass by signing and issuing the letter in item above to the representative. The by-pass permits the employee to contact the taxpayer directly. The practitioner can continue to represent the taxpayer, if accompanied by the taxpayer.

The representative will be afforded the courtesy of being advised of the time and place for future appointments with the taxpayer. The representative refuses to provide the requested documentation when they believe this documentation is privileged or that the request for such records is of doubtful legality. Issuance of a summons in this situation permits the representative to request a court to consider the legal issue of privilege or whether the information is relevant and material to the examination.

To monitor potential problems, the Internal Revenue Service has a process of referring practitioners to the OPR for consideration of disciplinary action. When an employee has reason to believe, or receives information, that a tax practitioner has violated any of the rules in Circular Regulations Governing Practice before the Internal Revenue Service, a written report must be promptly forwarded to the Area Return Preparer Coordinator for possible referral to the OPR.

This includes unenrolled tax preparers covered under Rev. A referral to OPR is a consideration to institute disciplinary action against a practitioner. If OPR has reason to believe that a provision of the law or regulations governing practice before the Internal Revenue Service has been violated based on the referral, OPR may reprimand or institute proceedings for disbarment or suspension. Each referral must describe and document the practitioner's actions in order to support potential disciplinary action.

Announcements of censures, disbarments, and suspensions normally are published in the Internal Revenue Bulletin. As long as the preparer's name appears on the list, they are not permitted to appear before the examiner as an advocate with or without the taxpayer, but only as a witness for the taxpayer under Rev.

OPR exercises jurisdiction over all professionals who practice before the Internal Revenue Service, including unenrolled tax preparers. Examiners are to exercise discretion in making referrals of specific cases to the Director, Office of Professional Responsibility.

In matters involving non-willful conduct in tax return preparation subject to a penalty, a referral may only be made when it can be established that the preparer has a pattern of failing to meet the required due-diligence standards of Circular An isolated instance in which a penalty may apply will not, in and of itself, require a referral unless willful conduct is involved.

A mandatory referral must be prepared when the following penalties are asserted against a practitioner:. Aiding and abetting penalties IRC , Penalties for Aiding and Abetting Understatement of Tax Liability - The assessment of an aiding and abetting penalty against a tax practitioner or appraiser mandates an automatic referral.

In addition, referrals must be considered in those situations in which the aiding and abetting penalty was considered but not imposed. The referral s must be based on a pattern of failing to meet the due-diligence or other standards of practice as prescribed by the Internal Revenue Service. An appraiser who aids or assists in the preparation or presentation of an appraisal in connection with the tax laws may be subject to disciplinary action if the appraiser knows the appraisal will be used in connection with the tax laws and will result in an understatement of the tax liability of another person.

The implication of a tax practitioner in a frivolous tax return matter IRC , Frivolous Tax Submissions must result in a referral. The accuracy-related penalty under IRC d , Substantial Understatement of Income Tax for a substantial understatement, is asserted and the facts of the case suggest the practitioner did not exercise due diligence in the preparation of the return. IRM A comment must be made in the client examination workpapers' penalty section as to consideration of a referral to the OPR.

The erroneous claim for refund or credit penalty under IRC , Erroneous Claim for Refund or Credit is asserted when there is no reasonable basis for the refund claim, and the facts suggest the practitioner did not exercise due diligence in the preparation of the claim. Opinions rendered by tax practitioners and used or referred to in the marketing of tax shelters abusive or otherwise.

Tax shelter opinions which violate Circular will be referred to OPR. Once it has been determined that a referral is necessary or appropriate, a referral package to OPR must be prepared and closed separately from the related case. Include in the referral package:. A complete copy of the Form , Income Tax Examination Changes, or equivalent including explanation of items and workpapers.

Explanatory memorandum, which details the actions of the practitioner. The actions of the practitioner must be described and documented in sufficient detail to develop a substantial position for potential disciplinary action. Include relevant documentation and exhibits from the income tax file. In the case of a return preparer, include a statement regarding the preparer's appearance before the Internal Revenue Service a record of contacts and activity of the preparer.

Form , Examining Officer's Activity Record, for the related tax case must note the referral was prepared and forwarded to the area return preparer coordinator. The referral package must be routed through the area return preparer coordinator. CAF numbers do not indicate that a representative is qualified to practice before the Internal Revenue Service. The CAF is an automated file containing information on the authority of representatives that will allow the Internal Revenue Service to handle matters regarding authorizations and representatives quickly and efficiently.

The CAF allows employees to identify representatives and the scope of authority. The following codes on a transcript will reflect if a POA is on file:. Transaction Code - will be present on a transcript of account if a POA is on file for the tax period requested. It does not mean the alpha designation is correct. For additional information on verification of the alpha designation, see IRM 4. It contains the years for which POAs are on file for a given taxpayer. IRM 2. If it is a blind trust.

In which case, only one representative is authorized to receive confidential information,. The representative will still receive all correspondence if the response is "Yes" or "No". CAF contains representative records.

It contains the name and address information for the representative. Home IRM Part4 4. Part 4. Examining Process Chapter Power of Attorney Rights and Responsibilities. All sections have been renumbered due to this addition.

Added a note about Licensed Public Accountants. Updated section to reflect current rules governing unenrolled return preparers. Updated subsection to include additional guidance. Updated to include Rev. Added a paragraph to 4. Added a caution to 4. Added paragraph to state the Internal Revenue Service may accept a POA that does not include all information required by regulation, if attached to a Form , Power of Attorney and Declaration of Representative, and is signed under penalties of perjury.

Added note that electronic signatures filed through e-Services are acceptable. Added note relating to signature requirements on the POA. Removed outdated tables which referenced older versions of Form Resources deleted, updated and moved to 4. Revised section to match updated language relating to suspension of interview contained in IRM 4.

Removed paragraphs 2 and 3 and cited another IRM for guidance. Deleted obsolete information. Deleted the note to remove guidance on an old law. Exhibit 4. Program Scope and Objectives. Program Owner. Primary Stakeholders. By law, the Service has the authority to discuss income tax return information with a designated representative under Title 26, IRC, Subtitle F — Procedure and Administration, Chapter 61, Information and Returns which includes, but is not limited to, the following IRC section: IRC , Confidentiality and disclosure of returns and return information.

Roles and Responsibilities. Program Management and Review. The following table lists commonly used terms and associated definitions: Term Definition Advocate One who acts on behalf of the taxpayer in urging particular determinations with respect to issues or controversies.

Appointee An individual or entity named on a TIA; same as designee. Attorney Any individual who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth, or the District of Columbia. Attorney-in-fact An agent authorized by a principal under a POA to perform a certain specified act s or kind of act s on behalf of the principal. Blind Trust A device used to give management of one's investments to an outside person over whom the beneficiary has no control.

Circular Treasury Department Circular No. Declaration of Representative A recognized representative must attach to the POA a signed declaration which may be made by completing Part II of Form stating the following: The representative is not currently under suspension or disbarment from practice before the Internal Revenue Service; The representative is aware of the regulations contained in Circular , concerning the practice of attorneys, CPAs, enrolled agents, enrolled actuaries, and others; The representative is authorized to represent the taxpayer s identified in the POA; The representative is an individual recognized to practice before the Internal Revenue Service.

Caution: The preparation of tax returns or the furnishing of information at the request of the Internal Revenue Service does not constitute "practice before the Internal Revenue Service. Related Resources. The following table contains related resources referenced in this IRM. Resources Title 26 CFR IRC Notice or regulations requiring records, statements, and special returns.

IRC c Procedures involving taxpayer interviews. IRC a Confidentiality privileges relating to taxpayer communications with practitioners.

IRC Canvass of districts for taxable persons and objects. IRC Examination of books and witnesses. IRM 1. IRM 4. Pub Conference and Practice Requirements. Note: Rev.

Power of Attorney and Tax Information Authorization. Unauthorized disclosure of taxpayer return information is strictly prohibited; Practice before the Internal Revenue Service is restricted to properly qualified and authorized persons; and A valid POA submitted by a taxpayer must be recognized unless the criteria for bypassing the POA have been met and implemented.

Practice Before the Internal Revenue Service. Such presentations include, but are not limited to: Corresponding and communicating with the Internal Revenue Service; Representing a taxpayer at conferences, hearings, or meetings with the Internal Revenue Service; and Preparing and filing documents with the Internal Revenue Service for a taxpayer.

Note: Generally, any person may prepare a tax return, furnish information at the request of the Internal Revenue Service, or appear as a witness for the taxpayer. Who May Represent a Taxpayer. Unenrolled or non-credentialed return preparers may not: Receive refund checks, Sign consents to extend the statutory period for assessment or collection of tax, Sign closing agreements regarding a tax liability, or Sign waivers of restriction on assessment or collection of a tax deficiency.

Note: An unenrolled return preparer may not represent a taxpayer, regardless of the circumstances, before appeals officers, revenue officers, counsel, or similar officers or employees of the Internal Revenue Service.

A partner - a general partner may represent the partnership before the Internal Revenue Service. Note: An individual may represent before the Internal Revenue Service by presenting satisfactory identification. Note: To check the status of a taxpayer's representative, the examiner can perform an internet search for CPA license holders, state bar members, etc. Privileges Afforded a Practitioner. If authorized on a POA, CPAs, attorneys, enrolled agents, enrolled actuaries, and enrolled retirement plan administrators, and students in LITC or STCP are entitled to: Practice anywhere in the country, Sign consents, reports, waivers, and claim disallowance reports, Represent taxpayers in Appeals, File a written response to a day letter, Sign returns if specifically authorized, Receive and inspect confidential tax return information, If the appropriate box is checked on Form , Power of Attorney and Declaration of Representative, the POA may receive notices and correspondence, Discuss proposed examination adjustments, and Receive but not negotiate a refund check for the taxpayer; if specifically authorized.

Rules of Practice. Submit Records and Information. Duty to Advise. Due Diligence. A practitioner must exercise due diligence when performing the following duties: Preparing or assisting in preparing, approving, and filing returns, documents, affidavits, and other papers relating to Internal Revenue Service matters; Determining the correctness of oral or written representations made by the practitioner to the Department of the Treasury; and Determining the correctness of oral or written representations made by the practitioner to clients with reference to any matter administered by the Internal Revenue Service.

A practitioner must not knowingly, directly or indirectly, do the following: Employ or accept assistance from any person who is under disbarment or suspension from practice before the Internal Revenue Service, if the assistance relates to a matter or matters constituting practice before the Internal Revenue Service. Note: Unenrolled return preparers are ineligible to exercise the privilege of limited practice before the Internal Revenue Service if the unenrolled return preparer has engaged in any conduct including incompetence prohibited by Rev.

Power of Attorney. Negotiate with the Internal Revenue Service on behalf of the taxpayer. Offer or execute a waiver of restriction on assessment or collection of a deficiency in tax. Offer or execute a waiver of notice of claim disallowance.

Execute a consent to extend the period of assessment or collection of tax. Execute a closing agreement. Receive, but not endorse, a check drawn on the United States Treasury with respect to a tax. Special Situations. The term legally significant documents include, but is not limited to: A settlement agreement entered into pursuant to IRC c 3 , Tax Matters Partner May Bind Certain Other Partners that is intended to bind non-notice partners, including a formal closing agreement under IRC , Closing Agreements; and An extension of the limitation period for assessment with respect to the entity items.

Representative Appointing Another Representative. Signature of the Representative s. Note: The Form cannot be modified without written taxpayer approval. Representative of a Decedent Appointing a Representative.