Below
is an extended email “conversation” I recently had with Hal Leahy, EA, a reader
of THE WANDERING TAX PRO blog, concerning my objection to exempting CPAs and
attorneys from the testing and CPE requirements of the new tax preparer
regulation regime.
The
issue at hand is the fact that I had been told by IRS Tax Preparation Czar
David Williams that attorneys and CPAs could not be required to take the test
and maintain specific CPE because there was a “statutory” prohibition.
What
it comes down to is – do attorneys and CPAs have a statutory right to
“practice” before the IRS or to “represent a person” before the IRS.
Please
note that the highlights in Hal’s first email are mine, but the highlights in
his subsequent emails are his.
Robert,
I
found the exemption for attorneys and CPAs in the US Code.
First,
here is an excerpt from the IRS publication A. REPRESENTATION OF TAXPAYERS
BEFORE THE INTERNAL REVENUE SERVICE, http://www.irs.gov/pub/irs-tege/eotopica86.pdf
"Background
Public Law
89-332, 1965-2 C.B. 640, enacted by Congress on November 8, 1965, was designed
to do away with agency-established bars for attorneys who appeared before
certain federal administrative agencies. The new law was also intended to wipe
out agency-established admission requirements for licensed attorneys, and to
allow persons to be represented before all federal agencies by counsel of their
choice. Additionally, the law eliminated the special enrollment requirements
for certified public accountants in representing others in accounting matters
before the Service.
Before the
enactment of the new law, the rules and regulations governing the right of
attorneys to represent others before the Service included a cumbersome
admission procedure, which required disclosing whether or not the applicants
were persons of good moral character. All applicants desiring admission to
practice before the Service were obligated to submit to a background
investigation before being enrolled to practice. In addition to having to
become familiar with the seventy provisions contained in Circular 230, the
applicants were also required to affirm that they would conduct themselves in
accordance with the laws, regulations, and rules of the Service.
In liberalizing
the rules, Congress felt that there was a presumption
that members in good standing of the professions of the law and certified
public accounting were of good moral character {ha! ha! ha! – rdf}, and that the surveillance by State bar
associations and State associations of public accountants were sufficient to
insure the integrity of practice by such persons before the Service."
The
following is the state of the law in the US Code today:
“5 USC Sec. 500 Administrative practice;
general provisions –
(a)
For the purpose of this section
–
(1)
"agency" has the meaning given it by section 551 of this title; and
(2)
"State" means a State, a territory or possession of the United States
including a Commonwealth, or the District of Columbia.
(b) An individual
who is a member in good standing of the bar of the highest court of a State may represent a person before an agency
on filing with the agency a written declaration that he is currently qualified
as provided by this subsection and is authorized to represent the particular
person in whose behalf he acts.
(c) An individual
who is duly qualified to practice as a certified public accountant in a State may represent a person before the Internal
Revenue Service of the Treasury Department on filing with that agency a
written declaration that he is currently qualified as provided by this
subsection and is authorized to represent the particular person in whose behalf
he acts."
Note
that attorneys may represent clients before any federal administrative agency
but CPAs are only authorized to represent before the IRS. A later section of
the US Code removed the carte blanche for attorneys to appear before the Patent
Office.
The
above is why the IRS cannot require attorneys or CPAs to be subject to any
further licensing or testing, they are already authorized to practice.
Hal
Leahy, EA
HL-
Thanks
much for the citations. I understand
that this is what Dave Williams was talking about when he referred to a
"statutory prohibition".
The
question here is - is preparing tax returns considered "representing a
person before the IRS"?
Previously
unenrolled preparers like me, who will eventually become RTRPs, will not be
allowed to "represent a person before the IRS" - with the minor
exception of representing a client whose 1040 I prepared at an audit under a
Power of Attorney. We are not required
to take the test and maintain specified CPE in order to represent a client
before the IRS - but to be able to prepare a federal income tax return.
Nobody
is asking that CPAs and attorneys, or EAs, take on additional requirements to
be able to continue to "represent a person before the IRS". The test and CPE is to verify that the CPA
and attorney are competent to prepare federal income tax returns.
I
see it as apples and oranges. What do
you say?
RDF
Preparing
a tax return is "practice before the IRS". Representation is a different matter. See (bolding added) Circular
230 http://www.irs.gov/pub/irs-pdf/pcir230.pdf, 10.2 Definitions.
"(4)
Practice before the Internal Revenue
Service comprehends all matters
connected with a presentation to the Internal Revenue Service or any of its
officers or employees relating to a taxpayer’s rights, privileges, or
liabilities under laws or regulations administered by the Internal Revenue
Service. Such presentations include, but
are not limited to, preparing documents; filing documents; corresponding
and communicating with the Internal Revenue Service; rendering written advice
with respect to any entity, transaction, plan or arrangement, or other plan or
arrangement having a potential for tax avoidance or evasion; and representing a
client at conferences, hearings, and meetings."
Practice
means "all matters" and includes but is not limited to preparing and
filing document with the IRS. That includes tax returns. The term practice is all encompassing and includes preparing returns.
That is why the IRS cannot require CPAs or attorneys to take a test, they have
unlimited practice rights from the US Code.
Section 10.3 gives unlimited practice rights to attorneys,
CPAs and EAs. The same section gives limited practice rights to Enrolled
Actuaries, Enrolled Retirement Plan Agents, and RTRPs. This is best seen by how
Circular 230 restricts the rights of RTRPs in Section 10.3
"(f) Registered tax return
preparers
(2)
Practice as a registered tax return preparer is limited to
preparing and signing tax returns and
claims for refund, and other documents for submission to the Internal Revenue
Service. A registered tax return preparer may prepare all or substantially all
of a tax return or claim for refund of tax. The Internal Revenue Service will
prescribe by forms, instructions, or other appropriate guidance the tax returns
and claims for refund that a registered tax return preparer may prepare and
sign."
It
does not say RTRPs can only prepare tax returns. It states that their practice
is limited to that. Therefore "practice" includes but encompasses
more then tax prep. The next section restricts the representation rights of
RTRPs so "practice" is not limited to just representation.
“(3) A registered tax return preparer
may represent taxpayers before revenue agents, customer service
representatives, or similar officers and employees of the Internal Revenue
Service (including the Taxpayer Advocate Service) during an examination.”
Hal
Leahy, EA
HL
-
You
have said “Representation is a different
matter”. The US Code you had
previously quoted gives attorneys and CPAs the statutory right to “represent a person”. The term “practice” is not used in the Code reference.
Does
an attorney and CPA have a statutory right to “practice” or to “represent”? I see it as a statutory right to “represent”,
which is fine with me. I would not
change that. If the right is to
“represent” only I would think the IRS can require testing and CPE for the
other aspects of “practice”, such as tax preparation. Just as the IRS treats RTRPs differently for
representing and preparing tax returns. Am
I wrong in my thinking?
Thanks!
RDF
As
of this writing I have not heard any more from Hal. I certainly thank him for providing me with
the citations regarding this issue.
So
here is my point.
(1) Section 500 quoted above is
“statute”. Congress writes
“statute. Circular 230 discusses
“practice”. Circular 230 is regulation. The IRS writes regulation.
(2) There is no question that attorneys
and CPAs have the statutory right to “represent a person” before the IRS, and
additional requirements cannot be placed on this statutory right.
(3) IRS Regulation describes what “practice
before the IRS” means, and determines the requirements that must be met to be
able to so “practice”. They have
determined that individuals who want to prepare federal tax returns must pass a
test and maintain specific annual CPE.
(4) So, while they are statutorily
permitted to represent persons before the IRS without additional requirements,
if attorneys and CPAs want to prepare
federal tax returns they should also pass the same test and maintain the
same specific annual CPE. And they
should be given the additional initials RTRP to indicate to the public that
they are authorized to prepare 1040s.
I
look forward to hearing from my fellow tax professionals on this issue. So comment away!
RDF
Are you also recommending that Enrolled Agents pass the competency test? Enrolled Agents have to pass 3 separate 3.5 hour exams to prove competency. This is more than the RTRPs will have to do or the CPAs.
ReplyDeleteAnon-
ReplyDeleteWhile I have said that CPAs and attorneys should be required to take the competency test and maintain CPE in federal taxation if they want to prepare 1040s - I have always supported the exemption for Enrolled Agents (EAs).
I have acknowledged that EAs have already passed a more extensive test in federal taxation, and have CPE in taxation requirements in excess of the RTRP.
TWTP