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PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o...

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Page 1: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions
Page 2: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions
Page 3: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions
Page 4: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Circular 230 – Ethics:

Beyond the Publication

Presented by Eva Rosenberg, EA

Page 5: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Who is Eva Rosenberg, M.B.A., EA?

• Eva Rosenberg, EA, Your TaxMama® has been teaching Enrolled

Agents exam review courses off and on since developing the

program for UCLA Extension over 20 years ago. These days, she’s

teaching her own course online at www.irsexams.school.

• Eva has a B.A. in Accounting and an M.B.A. in International

business. Your TaxMama® was a TaxWatch columnist for Dow

Jones' www.MartketWatch.com for nearly 15 years, and is the

author of several award-winning books. The latest book is the 4th

edition of Small Business Taxes Made Easy – due in April 2020

• As a speaker, TaxMama® is popular with both tax professionals and

taxpayers.

• You can find her at www.TaxMama.com where you can subscribe to

her free podcast.

• TaxMama® is also the moderator of the U.S. Tax Court Group at

LinkedIn and invites you to join.

5

Page 6: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Table of Contents

• Meet Your Instructor

○ Overview of Circular 230

○ Interacting with OPR

○ Brief Glossary

○ Practitioners re: POA

Limitations

Special Rules

No Longer Eligible

○ Conflicts of interest

○ Advertising and Fees

○ Evaluations and Thanks!

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Page 7: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Circ 230

31 C.F.R. Part 10 (1886)

• Main outline of Circ 230 (2014):o Subpart A – Rules Governing Authority to Practice

o Subpart B – Duties and Restrictions Relating to

Practice Before the Internal Revenue Service.

o Subpart C – Sanctions for Violations of Regulations

o Subpart D – Rules Applicable to Disciplinary Hearings

o Subpart E – General Provisions

• https://www.irs.gov/pub/irs-pdf/pcir230.pdf

• 2018 Pub 947 - https://www.irs.gov/publications/p947

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Page 8: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

RPO vs OPR

• Here are just the highlights – see the handout.

• Note: This is archived material now.

• And a Video -Practicing Before the IRS:https://www.irsvideos.gov/Professional/OPR

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Page 9: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Our Main Goal?

• When it comes to OPR oversight, our main goals:

1. Behave ethically

2. Guide your clients towards ethical behavior

3. Stay informed about changes to the tax law and

procedures

4. Learn shortcuts to the tax maze

5. Above all - CYA with respect to clients’ demands

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Page 10: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

CYA

What’s the best way for you to CYA?

Not this…

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Page 11: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Best CYA

DOCUMENT EVERYTHING!

If we teach you nothing else –

learn this.

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Page 12: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Document, Document, Document!

• Always make notes about conversations with IRS or with clients.

You never know what will be significant later.

• Make note of:o Name of person (if IRS or state, get employee number)

o Date

o Time

o All contact information (phone, fax, e-mail, etc.) – keep a master list

on the cover of the folder, or in the electronic client file.

o Summary of key points of discussion – especially agreements, or “to-

do”s with deadlines.

o If possible, request a fax or e-mail from client or government agent to

confirm details – or send them one.

o Also, when getting missing tax information, especially numbers from

client – get it in writing – ALWAYS. No exceptions.

What is a good way to document things?

12

Page 13: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Documentation Tools

• CRM tools for Accountants

(customer relations

management software)https://www.capterra.com/sem-

compare/customer-relationship-

management-software

• Customer management tools in

your own tax or accounting

software

• Simple Word docs that you

write up and put into your

client’s folders – preferably in a

secured folder

• Paper notes that you put into

the client’s file.

• Information to note:

• Date/time of contact

• Name, contact info, Employee ID, if

applicable

• Bullet points of issues discussed

• Commitments/deadlines YOU

agreed to

• Commitments/deadlines agent

agreed to

• Commitments/deadlines client

agreed to

• Make note of any changes &/or

targets met

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Page 14: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Glossary of Key Terms

The Commissioner of the Internal Revenue Service. Commissioner

A power of attorney that is not subject to a time limit and that will continue in force after the incapacitation or incompetence of the grantor (the taxpayer).

Durable power of attorney

A power of attorney that authorizes the attorney-in-fact to perform any and all acts the taxpayer can perform.

General power of attorney

A power of attorney that limits the attorney-in-fact to certain specified act(s).

Limited power of attorney

Generally an attorney, CPA, enrolled agent, or enrolled actuary authorized to practice before the IRS. Other individuals may qualify to practice temporarily or engage in limited practice before the IRS, however, they are not referred to as practitioners.

Practitioner

An individual who is recognized to practice before the IRS. Recognized

representative

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Page 15: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Who Can Practice Before the IRS?

Any of the following individuals can practice before the IRS – provided

they are not under suspension or disbarment. However, any individual

who is recognized to practice (a recognized representative) must be

designated as the taxpayer's power of attorney and file a written

declaration with the IRS stating that he or she is authorized and

qualified to represent a particular taxpayer. Form 2848 (or Form 8821)

may be used for this purpose.

• Attorneys.

• Certified public accountants (CPAs).

• Enrolled agents (EAs).

• Enrolled actuaries.

• Enrolled retirement plan agents

• Annual Filing Season Program (AFSPs) (limited)

• Unenrolled return preparers (limited)

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Page 16: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Practitioner Definition

Not quite the same as “Who Can Practice…”

From Circular 230, Section 10.2 - Practitioner means any individual

described in paragraphs (a), (b), (c), (d), (e), or (f) of 10.3.

a) Attorneys.

b) Certified public accountants.

c) Enrolled agents.

d) Enrolled actuaries.

e) Enrolled retirement plan agents

f) Registered tax return preparers.

aka RTRP - this status is gone, gone, gone – did you get your refund?

g) NOT LISTED – AFSPs (limited practice only)

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Page 17: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

May NOT Practice

Government officers and employees, and others.

• An individual, who is an officer or employee of the executive, legislative, or judicial branch of the United States Government; an officer or employee of the District of Columbia; a Member of Congress; or a Resident Commissioner may not practice before the Internal Revenue Service if such practice violates 18 U.S.C. §§ 203 or 205.

• (§§ 203 or 205 = Bribery or graft or conflict of interest https://www.law.cornell.edu/uscode/text/18/part-I/chapter-11)

State officers and employees. No officer or employee of any State, or subdivision of any State, whose duties require him or her to pass upon, investigate, or deal with tax matters for such State or subdivision, may practice before the Internal Revenue Service, if such employment may disclose facts or information applicable to Federal tax matters.

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Page 18: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Unenrolled Return Preparers

• Unenrolled return preparers.o An unenrolled return preparer is an individual other

than an attorney, CPA, enrolled agent, or enrolled

actuary who prepares and signs a taxpayer's return as

the preparer, or who prepares a return but is not

required (by the instructions to the return or regulations)

to sign the return.

• They get limited authority to speak with IRS about

tax returns they have prepared – when the box is

checked – ONLY If they are AFSPs.

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Page 19: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Who Has Any Rights At All? See Form 2848

An individual who is not a practitioner may represent a taxpayer before the Internal Revenue Service in the circumstances described in this paragraph (c)(1), even if the taxpayer is not present, provided the individual presents satisfactory identification and proof of his or her authority to represent the taxpayer. The circumstances described in this paragraph (c)(1) are as follows:

i. An individual may represent a member of his or her immediate family.

ii. A regular full-time employee of an individual employer may represent the employer.

iii. A general partner or a regular full-time employee of a partnership may represent the partnership.

iv. A bona fide officer or a regular full-time employee of a corporation (including a parent, subsidiary, or other affiliated corporation), association, or organized group may represent the corporation, association, or organized group.

v. A regular full-time employee of a trust, receivership, guardianship, or estate may represent the trust, receivership, guardianship, or estate.

vi. An officer or a regular employee of a governmental unit, agency, or authority may represent the governmental unit, agency, or authority in the course of his or her official duties.

vii. An individual may represent any individual or entity, who is outside the United States, before personnel of the Internal Revenue Service when such representation takes place outside the United States.

viii. An individual who prepares and signs a taxpayer’s tax return as the preparer, or who prepares a tax return but is not required (by the instructions to the tax return or regulations) to sign the tax return

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Page 20: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Limitations for the Un - Enrolled

What a totally Unenrolled Return Preparer May NOT Do

Unenrolled return preparers may represent taxpayers only before revenue agents, customer service representatives, or similar officers and employees of the Internal Revenue Service (including the Taxpayer Advocate Service) and only during an examination of the tax returns they prepared and signed prior to December 31, 2015.

Unenrolled return preparers may not represent taxpayers before

• appeals officers,

• revenue officers,

• counsel or

• similar officers or employees of the Internal Revenue Service or the Department of Treasury.

• Unenrolled return preparers may not execute closing agreements, extend the statutory period for tax assessments or collection of tax, execute waivers, or sign any document on behalf of a taxpayer.

If the unenrolled return preparer does not meet the requirements for limited representation, you must file Form 8821 to get any information. The unenrolled return preparer's involvement in the case will be limited to receiving or inspecting the taxpayer information. See Form 8821. (We’ll discuss this further when we talk about POAs.)

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Page 21: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Representation Outside the United States

Any individual may represent an individual or entity before personnel of the IRS when such representation occurs outside the United States. See section 10.7(c)(1)(vii) of Circular 230.

Shocking, isn’t it?

The only reason this is the case, is because there are so few EAs outside the country.

In fact, this current exam system through Prometric, that might precipitate the change - since they have more testing locations outside the country.

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Page 22: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Special Appearances

Authorization for Special Appearances

The Office of Professional Responsibility 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 Office of Professional Responsibility. However, it is granted

only when extremely compelling circumstances exist. If granted, the Office

of Professional Responsibility 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 Office of Professional Responsibility should not

be confused with a letter from an IRS 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.

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Page 23: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Students and Volunteers

Students in QLITCs and the STCP.

https://www.irs.gov/publications/p947#en_US_201709_publink1000148601(still a 2017 link – even in 2018 pub)

You may authorize a student who works in a (an acronym) Qualified

Low Income Taxpayer Clinic (QLITC) or Student Tax Clinic Program

(STCP) to represent you under a special order issued by the Office of

Professional Responsibility.

NEW! The designation of Student Attorney or CPA has been changed to

Qualifying Student.

These are usually some version of the VITA program.

Volunteer Income Tax Assistance , and

Tax Counseling for the Elderly (TCE)

https://www.irs.gov/individuals/free-tax-return-preparation-for-you-by-volunteers

Note: this is a great way to get experience – without committing to a job.

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Page 24: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

May Not Practice

• Who May Not Practice Before the IRS?

o In general, individuals who are not eligible, or who have lost

the privilege as a result of certain actions, may not practice

before the IRS. If an individual loses eligibility to practice,

the IRS will not recognize a power of attorney that names

the individual as a representative.

o Corporations, associations, partnerships, and other

persons that are not individuals. These organizations (or

persons) are not eligible to practice before the IRS.

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Page 25: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Mother May I? Or - NOT!

Loss of Eligibility

• Generally, individuals lose their eligibility to practice

before the IRS in the following ways: o Not meeting the requirements for renewal of enrollment (such

as continuing professional education).

o Requesting to be placed in an inactive retirement status.

o Being suspended or disbarred by state authorities to practice

as an attorney or certified public accountant.

o Not responding to a notice of non-compliance from the Office

of Professional Responsibility (OPR) on a timely basis.

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Page 26: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Failure to Meet Requirements - CPAs

• CPAs can have their licenses revoked or suspended

by the AICPA and/or their state societies for

disreputable conduct or a variety of other issues –

like not maintaining their CEs.

• The IRS Office of Professional Responsibility can

suspend or revoke a CPA’s right to prepare tax

returns and/or to represent taxpayers before the IRS

based on violations of Circular 230.

• OPR notification and reinstatement procedures are

the same as that for EAs.

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Page 27: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Failure to Meet Requirements - EAs

• Enrolled agents who fail to comply with the requirements for

eligibility for renewal of enrollment will be notified by the Office of

Professional Responsibility through first class mail. The notice will

explain the reason for noncompliance and provide the enrolled

agent with an opportunity to furnish information for reconsideration.

The enrolled agent has 60 days from the date of the notice to

respond.

• Practice denied.

• Any individual engaged in limited practice before the IRS who is

involved in disreputable conduct is subject to disciplinary action.

Disreputable conduct includes, but is not limited to, the list of items

under Disreputable Conduct shown later under What Are the Rules

of Practice.

• Note: The IRS has lost several EA’s renewals and has revoked

their rights. Contact the phone number on your notice

IMMEDIATELY and follow up in writing.

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Page 28: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Disreputable Conduct - Circular 230, Sec. 10.51(a)28

Page 29: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Inactive Roster

• An enrolled agent will be placed on the roster of inactive enrolled

individuals for a period of three years, if he or she: o Fails to respond timely to the notice of noncompliance with the

renewal requirements,

o Fails to file timely the application for renewal of enrollment, or

o Does not satisfy the requirements of eligibility for renewal of

enrollment.

• The enrolled agent must file an application for renewal and

satisfy all requirements for renewal within 3 years of being

placed on the roster. After 3 years, he or she will be removed

from the roster and the enrollment terminated.

• Note: There is now a master roster for all PTIN holders where

this information is visible to the public.

https://irs.treasury.gov/rpo/rpo.jsf

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Page 30: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

PTIN

All paid preparers must have a Preparer Tax Identification Number

(PTIN) before preparing returns.

You can sign up for your PTIN online or by paper application. It costs -

$0 - per year. (down from $64.25 – refunds have not yet been issued)

To submit a first-time PTIN application, view this checklist to get

started. https://www.irs.gov/tax-professionals/ptin-renewal-checklist-

what-you-need-to-get-started

PTINs that were obtained for the 2020 filing season will expire on

December 31, 2020. Renewal costs - $0 – for now.

NEWS! Expect to see fees at the end of this year – the IRS won a

major case last March - https://www.journalofaccountancy.com/news/2019/mar/court-

upholds-irs-ptin-program-201920752.html

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Page 31: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

PTIN Updates

Have you logged into your account lately?• All your education should be visible in your account within a

week or two after you take the class.

• The tax returns filed under your PTIN will be listed (if 50 or

more)

• All your CPE should be there, too.

https://www.irs.gov/tax-professionals/ptin-requirements-for-tax-return-preparers

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Page 32: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Sec 7216 Disclosure

a) General rule: Any person who is engaged in the business of

preparing, or providing services in connection with the

preparation of, returns of the tax imposed by chapter 1, or any

person who for compensation prepares any such return for any

other person, and who knowingly or recklessly—1) discloses any information furnished to him for, or in connection

with, the preparation of any such return, or

2) uses any such information for any purpose other than to prepare,

or assist in preparing, any such return,

shall be guilty of a misdemeanor, and, upon conviction thereof,

shall be fined not more than $1,000, or imprisoned not more

than 1 year, or both, together with the costs of prosecution.

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Page 33: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Disclosure – a Federal Issue

IRS used to have a page to help you create your own §7216

Disclosure Consent Forms https://www.irs.gov/tax-

professionals/section-7216-information-center - those templates are

gone.

BUT …CCH saved them for us – (download these 11 pages before

they disappear) http://tax.cchgroup.com/landingpages/books/sec-

7216/7216-IRS-Aids-Preparing-7216-Consent-Forms.pdf

They outline several situations, giving you the specific wording.

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Page 34: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Sample General Disclosure –

What it Looks Like34

Page 35: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Key Provisions of Circular 230

• 10.22 & 10.37 Due Diligence

• 10.29 Conflict of Interest

• 10.31 Taxpayer Checks

• 10.35 Competence

• 10.36 Procedures to Ensure Compliance

Note: Changes and additions to the sections 10.30 and

above are effective and applicable beginning June 12,

2014

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Page 36: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

10.22 & 10.37 Due Diligence

• 10.22, the provision dealing with general due diligence of forms on

accuracy provisions.

• It requires those governed by Circular 230 to exercise due

diligence when preparing—or assisting in preparing—approving, or

filing tax returns or other documents or papers with the IRS. Those

governed must exercise due diligence when they are determining

the correctness of any oral or written representation they are

making to the Treasury Department, and must determine the

correctness of any representation to clients with respect to matters

administered by the IRS.

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Page 37: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Diligence as to Accuracy - Sec. 10.22

• We must exercise Due Diligence in:

o Preparing, approving and filing tax returns, documents,

affidavits etc. relating to IRS matters

o Determining correctness of oral/written representations

made to the client or to Treasury personnel.

• Is Reliance on Another’s Work Product OK?

• Only With Reasonable Care

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Page 38: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Due Diligence Standards for Tax

Returns 10.34(a)

• May not sign a tax return or advise a position on a

tax return, if it:

o Lacks a reasonable basis

o Is an unreasonable position (6694(a)(2))

o Is a willful attempt to understate liability

o Is a reckless, intentional disregard of rules and regulations

o Patterns matter – OPR will look to see a pattern in our tax

returns.

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Page 39: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

10.29 Conflict of Interest

• Conflicts of interest – Conflicts can arise between couples, partners,

shareholders, members of LLCs, employees of a client business, etc.

Circ 230 demands that you do something common-sensical. If you want

to work with both or all of them, or they insist that you do, you must get a

written release from BOTH (or all) parties the instant you realize that a

conflict exists.

• Once you learn that a conflict exists, you must stop work and prepare

the written release for everyone to sign. This will relate to preparing tax

returns, giving advice or representing them in audit or collections

matters. Aside from the fact that this is now law, this really is great

advice, designed to protect you from litigation.

• This has been a big issue for discussion, especially in the IRS Tax

Forums and on the OPR’s agenda.

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Page 40: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Conflicts – Married Couples

• For instance, when you are dealing with a married couple

with a large balance due on a joint return. And the balance

due is caused by one of the spouses (let’s say, the husband).

o Is the wife aware of the balance due?o Does she know he didn’t make his estimated tax payments?o Does she want to be held “jointly and severally” liable for the

tax debt he generated?o Is the balance due from his business – in which she doesn’t

participate?o Are you (and she) comfortable that he doesn’t also have

unreported income or inflated expenses?o Might they be better off filing separately?o What else might you ask?

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Page 41: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Conflicts – Married Couples

• Another instance, when you are dealing with a married couple about to embark on a divorce, working with both of them is a conflict of interest. IRS feels that you cannot fairly look after the interests of both parties. Perhaps you can – but beware of nasty divorces. You will become the scapegoat in all financial situations if you remain in the middle, working with both. You’ll become of the victim of the “Mother loves you best” syndrome, where one spouse is apt to claim that you gave preferential treatment to the other.

• Sometimes you know that you’re just better off, gently referring each of them to other tax professionals and staying out of the middle. Sometimes you know that you can do a better job for both of them, if you can coordinate their respective tax issues with each other. There’s a lot you can do to maximize the tax benefits of dependents, credits and deductions if the couple can work together.

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Conflict - Preparer

• Another conflict that may arise is between you and your

client. o When IRS is looking at major errors or discrepancies in a tax

return, audit information or financial report in collections

situations – they will also be looking at preparer penalties.

o You may be facing a situation where it’s your neck or theirs.

Time to get a conflict of interest letter signed – or remove

yourself from the engagement, to represent just yourself.

• If you stay on the engagement, be sure that conflict of

interest letter spells out the issues that affect you – in

writing.

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Page 43: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

10.31 Taxpayer Checks

a) A practitioner may not endorse or otherwise negotiate any check (including

directing or accepting payment by any means, electronic or otherwise, into an

account owned or controlled by the practitioner or any firm or other entity with

whom the practitioner is associated) issued to a client by the government in

respect of a Federal tax liability.

b) Effective/applicability date. This section is applicable beginning June 12,

2014.

○ No cashing

○ No endorsing

○ No depositing to a controlled account

○ No split electronic transfers

○ Client concurrence is irrelevant

IRC 6695(f) penalty https://www.law.cornell.edu/uscode/text/26/6695

Since we generally have clients’ refunds deposited to their accounts, this is rarely

relevant or necessary, except for those stealing the refunds.

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10.35 Competence

• A practitioner must possess the necessary competence to engage

in practice before the Internal Revenue Service. Competent

practice requires the knowledge, skill, thoroughness, and

preparation necessary for the matter for which the practitioner is

engaged.

• A practitioner may become competent for the matter for which the

practitioner has been engaged through various methods, such as

consulting with experts in the relevant area or studying the relevant

law.b) Effective/applicability date. This section is applicable beginning June 12, 2014

• In addition, look to your own professional standards – ABA, AICPA.

These ARE the rules for EAs.

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Page 45: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

10.36 Procedures to Ensure Compliance

• Anyone who has, or shares principal authority and responsibility for

overseeing a firm’s Cir 230 practice must take reasonable steps to

ensure that the firm has adequate procedures in effect for all

members, associates, and employees for purposes of complying with

Subparts A, B and C of Circular 230

• Anyone identified as having this principal authority will be subject to

discipline for failing to comply if –

1) The individual through willfulness, recklessness, or gross incompetence

does not take reasonable steps to ensure that the firm has adequate

procedures to comply with this part, as applicable, and one or more

individuals who are members of, associated with, or employed by, the

firm are, or have, engaged in a pattern or practice, in connection with

their practice with the firm, of failing to comply with this part, as

applicable;

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Page 46: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

10.36 Procedures to Ensure Compliance

2)The individual through willfulness, recklessness, or gross incompetence

does not take reasonable steps to ensure that firm procedures in effect are

properly followed, and one or more individuals who are members of,

associated with, or employed by, the firm are, or have, engaged in a

pattern or practice, in connection with their practice with the firm, of failing

to comply with this part, as applicable; or

3)The individual knows or should know that one or more individuals who are

members of, associated with, or employed by, the firm are, or have,

engaged in a pattern or practice, in connection with their practice with the

firm, that does not comply with this part, as applicable, and the individual,

through willfulness, recklessness, or gross incompetence fails to take

prompt action to correct the noncompliance.c) Effective/applicability date. This section is applicable beginning June 12, 2014

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Page 47: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Bottom Line – on Ethical Solicitations

“Providing false hope in order to

extract money from a desperate tax

debtor is a violation of Section

10.30,” Karen Hawkins once said.

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Page 48: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Advertising

• Sec. 10.30 (a) Advertising and solicitation

restrictions.

o A practitioner may not, with respect to any Internal

Revenue Service matter, in any way use or participate in

the use of any form of public communication or private

solicitation containing a false, fraudulent, or coercive

statement or claim; or a misleading or deceptive statement

or claim.

What happens when you violate these provisions?

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Advertising Your Fees

• Sec 10.30 (b) Fee Information

1) (i) A practitioner may publish the availability of a written schedule of

fees and disseminate the following fee information —

(A) Fixed fees for specific routine services.

(B) Hourly rates.

(C) Range of fees for particular services.

(D) Fee charged for an initial consultation.

(ii) Any statement of fee information concerning matters in which costs

may be incurred must include a statement disclosing whether clients

will be responsible for such costs.

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Contingent Fees

• Contingent Fees – A contingent fee is where the fee is

based on a percentage of the refund or taxes saved.

Or when we offer to reduce or waive our fee if we

cannot get the intended result.

• Circ 230 spells out the instances where we may

charge contingent fees. Never for preparing the initial

tax return for any years. And never for giving written

advice, or in connection with any qualified plans.

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Contingent - Effective

• These rules are effective for all fee agreements dated after March

26, 2008. We may charge them only in the following instances

(read Sec 10.27):

1) Representing taxpayers at audit

a) of an original return

b) or of an amended return or claim for refund, where the amended return or

claim for refund or credit was filed within 120 days of the taxpayer

receiving a written notice of the examination of, or a written challenge to

the original tax return.

2) In connection with a claim for credit or refund filed solely in

connection with the determination of statutory interest or penalties

assessed by the IRS.

3) In connection with any judicial proceeding arising under the Internal

Revenue Code.

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Secure Your Client Records

• IRS Campaign - Protect Your Clients; Protect Yourself

from Identity Theft https://www.irs.gov/newsroom/tax-professionals-protect-your-

clients-protect-yourself-from-identity-theft

• IRS Pub 4557 - (rev 06-2018)

https://www.irs.gov/pub/irs-pdf/p4557.pdf

o Secure information in office

o Take sensible precautions about staff screening

o Don’t send SSNs in the mail or email

o Shred documents – do not simply throw them out.

o Return records to clients

• LOTS of scams - IRS many alerts -https://www.irs.gov/newsroom/tax-scams-consumer-alerts

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Government on the Warpath

https://www.irs.gov/pub/irs-utl/2018_irs_criminal_investigation_annual_report.pdf

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Topic of Abusive Preparers Came Up

• IRS and State – encourage us to report preparers who knowingly

o Prepare fraudulent returns

o Run refund mills

o Steal their clients’ refunds

o Use stolen identities to add dependents

• They make our profession look bad – and they steal our clients by

offering seemingly better tax prep services.

• Use Form 211 – if you want a reward and have specific, provable information and

can point the IRS to collectible assets - https://www.irs.gov/pub/irs-pdf/f211.pdf

(whistleblower claim - https://www.irs.gov/compliance/how-do-you-file-a-

whistleblower-award-claim-under-section-7623-a-or-b )

• Use Form 14157 - Tax Return Preparer Fraud or Misconduct Affidavit

https://www.irs.gov/pub/irs-pdf/f14157a.pdf

• For more information - https://www.irs.gov/tax-professionals/make-a-complaint-

about-a-tax-return-preparer

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Closing

• IRS Doesn’t ask that much of us, do they?

• What do they expect? Not much. Just…

o Ethics

o Thorough Research

o The Latest Technology

o The Skills of a Diplomat

o Mind-Reading!

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Resources

Circular 230 - Regulations Governing the Practice of Attorneys,

Certified Public Accountants, Enrolled Agents, Enrolled Actuaries,

and Appraisers before the Internal Revenue Service (rev –

06/2014)

https://www.irs.gov/pub/irs-utl/revised_circular_230_6_-_2014.pdf

Publication 947 (02/2018), Practice Before the IRS and Power of

Attorney

https://www.irs.gov/publications/p947

Publication 216 - Conference and Practice Requirements (updated

03/92) https://www.irs.gov/pub/irs-pdf/p216.pdf

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Conclusion

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Page 59: PowerPoint Presentation · Circ 230 31 C.F.R. Part 10 (1886) • Main outline of Circ 230 (2014): o Subpart A –Rules Governing Authority to Practice o Subpart B –Duties and Restrictions

Thanks for joining us

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and other terrific courses –

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