Publication 947 |
2001 Tax Year |
Practice Before the IRS
The Director of Practice is responsible for
administering and enforcing the regulations governing practice before
the IRS. These regulations are published in pamphlet form as Treasury
Department Circular 230. The director's responsibility includes making
determinations on applications for enrollment to practice and
conducting disciplinary proceedings relating to those allowed to
practice.
What Is Practice Before the IRS
A person is practicing before the IRS if he or she:
- Communicates with the IRS for a taxpayer regarding the
taxpayer's rights, privileges, or liabilities under laws and
regulations administered by the IRS,
- Represents a taxpayer at conferences, hearings, or meetings
with the IRS, or
- Prepares and files necessary documents with the IRS for a
taxpayer.
Just preparing a tax return, furnishing information at the
request of the IRS, or appearing as a witness for the taxpayer is not
practice before the IRS. These acts can be performed by anyone.
Who Can Practice Before the IRS
Any of the following individuals can practice before the IRS.
However, any individual who is recognized to practice (a
recognized representative) must file a written declaration
with the IRS that he or she is qualified and authorized to represent
you. Part II of Form 2848 is a declaration that can be used for this
purpose.
Attorneys.
Any attorney who is not currently under suspension or disbarment
from practice before the IRS and who is a member in good standing of
the bar of the highest court of any state, possession, territory,
commonwealth, or of the District of Columbia may practice before the
IRS.
Certified public accountants (CPAs).
Any CPA who is not currently under suspension or disbarment from
practice before the IRS and who is duly qualified to practice as a CPA
in any state, possession, territory, commonwealth, or in the District
of Columbia may practice before the IRS.
Enrolled agents.
Any enrolled agent may practice before the IRS.
Enrolled actuaries.
Any individual who is enrolled as an actuary by the Joint Board for
the Enrollment of Actuaries may practice before the IRS. The practice
of enrolled actuaries is limited to certain Internal Revenue Code
sections that relate to their area of expertise, principally those
sections governing employee retirement plans.
Unenrolled return preparers.
Any individual other than an attorney, CPA, enrolled agent, or
enrolled actuary who prepares a return and signs it as the return
preparer is an unenrolled return preparer. Also, any individual who
prepares a return and is not required to sign it as the preparer is
considered to be an unenrolled preparer.
Limited practice.
An unenrolled return preparer may represent the taxpayer only
concerning the tax liability for the year or period covered by the
return that he or she prepared. Also, an unenrolled return preparer is
permitted to represent taxpayers only before the Examination Division
of the IRS and is not permitted to represent taxpayers
before the Appeals, Collection, or any other division of the IRS.
Unenrolled return preparers cannot perform the following
activities for another taxpayer.
- Sign claims for refund.
- Receive refund checks.
- Sign consents to extend the statutory period for assessment
or collection of tax.
- Sign closing agreements regarding a tax liability.
- Sign waivers of restriction on assessment or collection of a
tax deficiency.
For more information on these limits, get Publication 470. This
publication is actually a separate printing of Revenue Procedure
81-38.
Practice denied.
The Director, after giving notice and an opportunity for a
conference, can deny eligibility for limited practice before the IRS
to any unenrolled preparer or other unenrolled individual (discussed
next) who has engaged in disreputable conduct. This conduct includes,
but is not limited to, the list of items under Disreputable
Conduct shown later under What Are the Rules of Practice.
Other unenrolled individuals.
Because of their special relationship with a taxpayer, the
following unenrolled individuals can represent the specified taxpayers
before the IRS, provided they present satisfactory identification and,
except in the case of an individual described in (1) below, proof of
authority to represent.
- An individual. An individual can represent
himself or herself before the IRS and does not have to file a written
declaration of qualification and authority.
- A family member. An individual family member can
represent members of his or her immediate family. Family members
include a spouse, child, parent, brother, or sister of the
individual.
- An officer. A bona fide officer of a corporation
(including parents, subsidiaries, or affiliated corporations),
association, organized group, or, in the course of his or her official
duties, an officer of a governmental unit, agency, or authority can
represent the organization he or she is an officer of before the
IRS.
- A partner. A general partner can represent the
partnership before the IRS.
- An employee. A regular full-time employee can
represent his or her employer. An employer can be, but is not limited
to, an individual, partnership, corporation (including parents,
subsidiaries, or affiliated corporations), association, trust,
receivership, guardianship, estate, organized group, governmental
unit, agency, or authority.
- A fiduciary. A trustee, receiver, guardian,
personal representative, administrator or executor can represent the
trust, receivership, guardianship, or estate. See Fiduciary
under When Is a Power of Attorney Not Required,
later.
Representation Outside the United States
An unenrolled individual can represent any individual or entity
before IRS personnel who are outside the United States.
Authorization for Special Appearances
The Director of Practice can authorize an individual who is not
otherwise eligible to practice before the IRS to represent another
person for a particular matter. The prospective representative must
request this authorization in writing from the Director of Practice.
However, it is granted only when extremely compelling circumstances
exist. If granted, the Director of Practice will issue a letter that
details the conditions related to the appearance and the particular
tax matter for which the authorization is granted.
The authorization letter from the Director of Practice should not
be confused with a letter from an IRS service center advising an
individual that he or she has been assigned a Centralized
Authorization File (CAF) number (an identifying number that the IRS
assigns representatives). The issuance of a CAF number does not
indicate that a person is either recognized or authorized to practice
before the IRS. It merely confirms that a centralized file for
authorizations has been established for the representative under that
number.
Who Cannot Practice
In general, individuals cannot practice before the IRS either
because they are not eligible to practice, or because they have lost
the privilege as a result of certain actions. The following
individuals generally cannot practice before the IRS.
- Individuals convicted of any criminal offense under the
revenue laws of the U.S.
- Individuals convicted of any offense involving dishonesty or
breach of trust.
- Individuals under disbarment or suspension from practicing
as attorneys, CPAs, public accountants, or actuaries in any state,
possession, territory, commonwealth, or in the District of Columbia,
any federal court, or any body or board of any federal agency.
- Individuals who are disbarred or suspended from practice
before the IRS because they:
- Refuse or have refused to comply with the regulations
governing practice before the IRS.
- Willfully and knowingly mislead or threaten a taxpayer with
intent to defraud.
- Have engaged in conduct or practices that are disreputable
(see Disreputable Conduct, later).
- Individuals whose applications for enrollment to practice
before the IRS have been denied.
- Officers or employees of the U.S. Government or of the
District of Columbia.
- Officers or employees of state governments with authority to
act on state tax matters, if their employment may disclose facts or
information on Federal tax matters.
- Any member of Congress or Resident Commissioner (elect or
serving) in connection with any matter for which he or she directly or
indirectly receives, agrees to receive, or seeks any
compensation.
Corporations, associations, partnerships, and other persons
that are not individuals.
These organizations (or persons) are not eligible to practice
before the IRS.
How Does an Individual Become Enrolled
The Director of Practice can grant enrollment to practice before
the IRS to an applicant who demonstrates special competence in tax
matters by passing a written examination administered by the IRS.
Enrollment also can be granted to an applicant who qualifies because
of past service and technical experience in the IRS. In either case
certain application forms, discussed next, must be filed. An applicant
must not have engaged in any conduct that would justify suspension or
disbarment by the IRS.
Form 2587.
Applicants can apply to take the special enrollment examination by
filing Form 2587, Application for Special Enrollment
Examination. Parts 4 and 5 of the form should be mailed with the
examination fee to the address shown on the form. The amount of the
fee is also shown on Form 2587. The form is revised annually and is
available in mid-June each year. The form must be returned to the IRS
by July 31. To obtain Form 2587, see How To Get More
Information, later.
Form 23.
Applicants can apply for enrollment by filing Form 23,
Application for Enrollment to Practice Before the Internal
Revenue Service, with the Director of Practice. The application
must include a check or money order in the amount of the fee shown on
Form 23. To obtain Form 23, see How To Get More
Information, later.
Period of enrollment.
An enrollment card will be issued to each individual whose
application is approved. The individual is enrolled until the
expiration date shown on the enrollment card. To continue practicing
beyond the expiration date, the individual must request renewal of the
enrollment.
Form 8554.
Applicants for renewal of enrollment must file Form 8554,
Application for Renewal of Enrollment to Practice Before the
Internal Revenue Service. To qualify for renewal, applicants
generally must complete 72 hours of continuing professional education
during each 3-year enrollment cycle. See Form 8554 for more
information. To obtain Form 8554, see How To Get More
Information, later.
What Are the Rules of Practice
An attorney, CPA, enrolled agent, or enrolled actuary authorized to
practice before the IRS (referred to hereafter as a
practitioner) has the duty to perform certain acts and is
restricted from performing other acts. In addition, a practitioner
cannot engage in disreputable conduct (discussed later).
Any practitioner who does not comply with the rules of practice or
engages in disreputable conduct is subject to disciplinary action.
Also, unenrolled preparers must comply with most of these rules of
practice and conduct to exercise the privilege of limited practice
before the IRS. See Publication 470 for a discussion of the special
rules for limited practice by unenrolled preparers.
Duties
Practitioners must promptly submit records or information
requested by officers or employees of the IRS. When the Director
of Practice requests information concerning possible violations of the
regulations by other parties, the practitioner must provide it and be
prepared to testify in disbarment or suspension proceedings. A
practitioner can be excepted from these rules if he or she believes in
good faith and on reasonable grounds that the information requested is
privileged or that the request is of doubtful legality.
Confidentiality privilege.
The confidentiality protection for certain communications between a
taxpayer and an attorney (privileged communications) has been expanded
to apply to similar communications between a taxpayer and any
federally authorized tax practitioner. This new provision is effective
for communications occurring after July 21, 1998.
This confidentiality privilege cannot be used in any administrative
proceeding with an agency other than the IRS.
Communications that are protected.
The protection of this privilege applies only to tax advice given
to the taxpayer by any individual who is a federally authorized tax
practitioner. Tax advice is advice in regard to a matter that is
within the scope of the practitioner's authority to practice. The
confidentiality protection applies to communications that would be
privileged if between the taxpayer and an attorney and that relate to
noncriminal:
- Tax matters before the IRS, or
- Tax proceedings brought in federal court by or against the
United States.
Communications regarding corporate tax shelters.
This protection of tax advice communications does not apply to
certain written communications between a federally authorized tax
practitioner and a director, shareholder, officer, employee, agent, or
representative of a corporation. It does not apply if the
communication involves the promotion of the direct or indirect
participation of the corporation in any tax shelter.
Duty to advise.
A practitioner who knows that his or her client has not complied
with the revenue laws or has made an error in or omission from any
return, document, affidavit, or other required paper has the
responsibility to advise the client promptly of the noncompliance,
error, or omission.
Due diligence.
A practitioner must exercise due diligence when performing the
following duties.
- Preparing or assisting in the preparation, approving, and
filing of returns, documents, affidavits, and other papers relating to
IRS matters.
- Determining the correctness of oral or written
representations made by him or her to the Department of the
Treasury.
- Determining the correctness of oral or written
representations made by him or her to clients with reference to any
matter administered by the IRS.
Restrictions
Practitioners are restricted from engaging in certain practices.
The following paragraphs discuss some of those restricted practices.
Delays.
A practitioner must not unreasonably delay the prompt disposition
of any matter before the IRS.
Assistance from disbarred or suspended persons and former IRS
employees.
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 IRS.
- Accept employment as associate, correspondent, or subagent
from, or share fees with, any person under disbarment or suspension
from practice before the IRS.
- Accept assistance from any former government employee where
provisions of these regulations or any federal law would be
violated.
Performance as a notary.
If the practitioner is a notary public and is employed as counsel,
attorney, or agent in a matter before the IRS, or has a material
interest in the matter, he or she must not engage in any notary
activities relative to that matter.
Practice by partners of current and former government
employees.
A partner of an officer or employee of the executive branch of the
U.S. Government, or of an independent agency of the U.S. or of the
District of Columbia, cannot represent anyone in a matter before the
IRS in which the officer or employee has (or had) a personal or
substantial interest as a government employee. Although not discussed
here, there are similar and additional restrictions on former
government employees.
Negotiations of taxpayer refund checks.
Practitioners who are income tax return preparers must not endorse
or otherwise negotiate (cash) any refund check issued to the taxpayer.
Disreputable Conduct
Disreputable conduct by a practitioner includes such things as:
- Committing any criminal offense under the revenue laws, or
committing any offense involving dishonesty or breach of trust,
- Knowingly giving, or participating in the giving of, false
or misleading information in connection with federal tax
matters,
- Soliciting employment by prohibited means as discussed in
section 10.30 of T.D. Circular 230,
- Willful failure to file a tax return, evading or attempting
to evade any federal tax or payment, or participating in such
actions,
- Misappropriating, or failing to properly and promptly remit,
funds received from clients for payment of taxes,
- Directly or indirectly attempting to influence the official
action of IRS employees by the use of threats, false accusations,
duress, or coercion, or by offering gifts, favors, or any special
inducements,
- Being disbarred or suspended by the District of Columbia or
any state, possession, territory, commonwealth, or any federal court,
or any body or board of any federal agency,
- Knowingly aiding and abetting another person to practice
before the IRS during a period of suspension, disbarment, or
ineligibility (maintaining a partnership so that a suspended or
disbarred person can continue to practice before the IRS is presumed
to be a violation of this provision),
- Contemptuous conduct in connection with practice before the
IRS, including the use of abusive language, making false accusations
and statements knowing them to be false, or circulating or publishing
malicious or libelous matter, and
- Giving a false opinion knowingly, recklessly, or through
gross incompetence; or following a pattern of providing incompetent
opinions in questions arising under the federal tax laws.
Reprimands, Disbarments, and Suspensions
The Director of Practice may reprimand or institute proceedings to
suspend or disbar any attorney, CPA, or enrolled agent who the
Director of Practice has reason to believe violated the rules of
practice. Except in certain unusual circumstances, the Director will
not institute a proceeding for suspension or disbarment against a
practitioner until the facts (or conduct) which may warrant such
action have been given in writing to that practitioner. Also, before
proceedings are instituted, the Director will generally give the
practitioner the opportunity to demonstrate or achieve compliance with
the rules.
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