Wednesday, January 30, 2013


As you know, on January 18, 2013, in a move that surprised the tax preparation community and, I expect, the Internal Revenue Service as well, the U.S. District Court for the District of Columbia shut down the IRS tax return preparer regulation program.

In his decision in Sabina Loving, et. al. v. Internal Revenue Service, Judge James E. Boasberg said the Internal Revenue Service had overstepped its authority by regulating tax return preparers. Congress never gave the IRS the authority to license tax preparers. The judge's order included an injunction that bars the IRS from continuing its implementation of the RTRP program.

The Justice Department subsequently filed a motion on behalf of the IRS requesting that the court suspend the injunction and allow the Service to continue its RTRP program, pending resolution of an appeal to be filed within 30 days.

In the latest development in this story, yesterday the Institute for Justice filed a response in federal court to the Justice Department’s request for a stay of the injunction.  

In briefly reviewing the Institute for Justice filing I discovered that a blog post by me here at TTP, which talked about the impossibility of the 300,000+ still untested potential RTPS to be able to take and pass the test by the December 31, 2013 deadline, was referenced in the latest filing by the Institute for Justice, in a footnote (#11 on Page 10).  Posts by Joe Kristan of THE ROTH AND COMPANY TAX UPDATE BLOG, Jason Dinesen of DINESEN TAX TIMES, and Kelly Phillips Erb of FORBES’ “TaxGirl” are also referenced in the footnotes.  

In discussing the Department of Justice motion, fellow “twit” (we follow each other on Twitter) Dan Alban, attorney for the Institute for Justice, explains that –

The IRS has repeatedly and grossly misrepresented how the court’s ruling in this case will affect this tax season, tax payers and the IRS itself.”

To quote the introduction to the January 29 filing -

The sky is not falling. Despite the dire claims of Defendants (hereinafter “the IRS”), the world of tax administration will not come to an end if this Court’s injunction against the IRS’s unlawful licensing scheme for tax preparers remains in place while on appeal. In fact, the absence of the registered tax return preparer (“RTRP”) licensing regulations will make this income tax season no different from every prior tax season. For the 100-year history of the modern income tax, tax preparers have always been free to assist taxpayers in preparing returns without obtaining a license from the IRS or any other federal agency, and taxpayers have always been free to hire whomever they pleased to prepare their tax return.”

The IFJ contends the the Department of Justice motion made “several misleading claims and unsettling arguments, including inflating the monetary cost of the ruling to the agency by over 2,000 percent”.

Dan points out -

But even taken at face value, the IRS’s arguments are truly appalling.  The IRS told the court that their licensing scheme is a cash cow, and the agency must be permitted to continue milking hapless tax preparers, despite a federal court declaring their scheme unlawful.”

I originally supported the IRS regulation regime, mostly as a “lesser of two evils” alternative to having regulation legislated by Congress.  I supported the concept of the RTRP designation, and felt that this certification would provide experienced, competent, and ethical “previously unenrolled” preparers like myself with the respect and recognition we deserved.  But all along I believed the best option would be certification and oversight by an independent industry-based organization (I discuss this option in detail in an editorial that will appear in TAXPRO TODAY either tomorrow or Friday).

While I respected the original lawsuit’s “libertarian” arguments, I did not agree that the IRS regulation regime would force tons of serious and legitimate tax professionals out of business.  I do agree that the regulation would result in the loss of many probably good intentioned and ethical part-time seasonal “casual preparers” (as Joe Kristan has called them) with minimal training and competence – but I also feel that this is not necessarily a bad thing.

At this point I do support the court’s decision.  I feel that the injunction should stand and the IRS RTRP program should remain shut down for good.  The court should not grant the Department of Justice motion.  There would be no real “damage” to the IRS if the injunction stands, while, as I mentioned in an earlier post here, there would be much potential “damage” to tax preparers if the regime were to temporarily continue and the court decision is eventually upheld, as I expect it will be.


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