Attorneys Audit Technique Guide - Chapter 1
NOTE: This document is not an official pronouncement of the law or the position of the Service and cannot be used, cited, or relied upon as such. This guide is current through the publication date. Since changes may have occurred after the publication date that would affect the accuracy of this document, no guarantees are made concerning the technical accuracy after the publication date.
Chapter 1 - Overview of Attorney Returns
- Bank Accounts
- Other Revenue Sources
- Client-Related Expenses
- Attorney-Client Privilege
- Information Reports
- Exhibit 1-2 Attorney-Client Privilege
The right to practice law as an attorney is contingent on being admitted by a state and/or federal bar. These requirements differ from state to state. Typically, a law degree from an accredited law school is required to sit for the State Bar examination. On passing any required examinations and satisfying any other requirements, such as a background check or committee review on character and fitness, the applicant is licensed to practice law.
Some courts have additional requirements an attorney must satisfy in order to appear before them. For example, practice before the U.S. Supreme Court requires an attorney to have been admitted to practice in the highest court of a State, Commonwealth, Territory or Possession, or the District of Columbia for a period of at least three years immediately before the date of application; must not have been the subject of any adverse disciplinary action pronounced or in effect during that 3-year period; and must appear to the Court to be of good moral and professional character. The attorney also must have the personal recommendation of two attorneys already admitted to practice before the Supreme Court. Each federal or circuit court establishes requirements to practice, as do special courts, such as the U.S. Tax Court and the U.S. Court of Claims.
In the United States, attorneys practice their craft in a variety of ways. Some work as employees for government agencies, or serve as in-house counsel for larger corporations. Also, a large number of attorneys are self-employed, operating their own sole proprietorships, alone or in a shared expense relationship with other sole proprietors, or as partners or shareholders of larger law firms. This guide will assist you in examining an attorney’s tax returns.
Examining an attorney’s return is not unlike the examination of any other business. However, examiners may need to address different issues depending on an attorney’s area(s) of expertise. For example, personal injury attorneys typically work on a fee contingency basis. This means that the attorney is paid a percentage of the amount recovered by their client. This percentage may vary depending on the outcome of the case. Typically, an attorney would earn a lower percentage for a case that is settled out of court rather than taken to trial. Examiners should also be aware that, depending on the attorney’s specialty, clients might pay a large portion of their fees well in advance. This should be taken into consideration during the examiner’s pre-planning activities. Another consideration is that some attorneys may have a greater percentage of cash receipts than others. For example, criminal and immigration attorneys are in a position to receive cash for services, as their clients may not utilize U.S. banks. Currency Transaction Reports (CTR's), posted to the IRP report may be helpful in determining if an attorney has received large cash payments. Details on each individual CTR are available on the Web CBRS system.
Attorneys provide their services through sole proprietorships, partnerships, corporations, and limited liability companies. Each entity is subject to unique tax issues. These issues are common to many professional services in addition to attorneys. If the attorney provides services through a corporation, you may face issues including, but not limited to; the corporation being classified as a personal service corporation under IRC § 441; constructive dividends; loans to shareholders; or use of corporate assets. S-corporations also raise additional issues, such as inadequate compensation and built in gains. You need to consider whether the business structure used by the attorney raises any unique examination issues. Some of these issues are discussed in Chapter 3.
The formula for auditing these returns is simply good use of regular audit techniques: a thorough pre-contact analysis, a fully prepared initial interview, an in-depth inspection of the taxpayer's income records, and judicious use of third-party contacts to verify or refute the taxpayer's assertions.
A good accounting system for attorneys will include strong internal controls to monitor both fees billed and costs and expenses advanced for clients. There are four major types of fee arrangements that attorneys use. These are discussed below in the income section. All four types of fee arrangements are based upon the amount of time an attorney spends on a particular matter. For that reason, attorneys typically maintain detailed records to track the exact time spent on any given case.
Before time and billing software was used, this information was recorded on client ledger cards. These cards included the time spent on the client’s matter, along with all chargeable expenses. Now, this procedure is often accomplished through the use of automated software. These software programs often utilize “pop-up” timers on office workstations, where the firm’s attorney or administrative employee will enter the client’s code and click on a “start” button to commence billing the client for the time involved on a particular task. Advanced costs are recorded into the system in a similar fashion to other accounts receivables. Usually at the end of each month, the partner assigned to a particular case will review hours and other costs charged to the client and make adjustments to the client’s bill, if warranted, prior to issuance. This adjustment log should be reviewed as part of the examination, along with reconciliation of the output of the time and billing system to the appropriate accounts in the general ledger. Attorneys may also maintain time charged and expense information in the client’s file.
Generally, the cash receipts journal will show a breakdown between fees received and expense reimbursements. The cash disbursements journal should show an allocation between regular overhead expenses paid and client costs paid. The records for smaller firms and sole practitioners may consist of the bank statements and checks. Regardless of the business size, there should still be client ledgers and files.
Attorneys usually maintain the following records:
- Appointment book;
- Client card index;
- Receipts Journal or Daily log;
- Disbursements journal, book or other record reflecting the breakdown of regular expenses paid from bank accounts as well as disbursements made from client trust funds. These disbursement records should provide a mechanism from which disbursements chargeable to a specific client can be noted on their records for billing purposes. The attorney may also maintain a petty cash journal;
- Accounts Receivable journal showing billed receivables;
- Individual client accounts including a description of services rendered, charges and credits, a summary of unbilled charges and work in progress, and final invoices;
- Case time records per client;
- Register of cases in progress, oftentimes organized by client's name; and
- Time summary reports, sorted by attorney and by client, listing the time, dates of work, billings and/or charges.
Examiners can test the validity of reported income by comparing and reconciling the data provided on the above listed reports.
Most legal practices use a general operating account and one or more trust accounts. In addition, there may be separate accounts used for payroll, savings, or investment activity. Only the trust accounts have features which are unique to attorneys and will be discussed in detail. An explanation will be given of how these accounts should be handled.
Trust accounts should be used for all funds and assets received or held by an attorney for the benefit of their clients. The attorney is the trustee of the account and has the power to disburse funds on the client's behalf.
Trust funds are oftentimes required to be placed in interest bearing accounts, and typically checking accounts are used. These accounts are under the control of the attorney and are labeled "Trust Account," "Attorney/Client Trust Account," "Client's Funds Account," or some similar title. There are two types of trust account, the General Trust Account and Segregated Trust Accounts. The General Trust accounts, also known as “Interest on Lawyer Trust Account” (IOLTA) are administered under the direction of the program for IOLTA accounts. These programs are created by State Legislation or the state’s court system. The earnings on these accounts are usually used to provide legal services for the poor. Therefore, these bank accounts may show either the identification number of the Bar Association, the IOLTA Program recipient, or the client. The examiner should contact the appropriate State Bar Association to determine the proper handling of these accounts and their earnings.
Whether the funds are placed in a general trust account (IOLTA account) or into a separate trust account for the benefit of one client is determined generally by the attorney under rules established by the appropriate state. Usually, this determination is based on factors such as whether more than a nominal net return on investment would be received on these funds during the period of time in the account. These two types of trust accounts are explained below.
This account includes funds received in trust on behalf of many clients and may be the only trust account maintained by an attorney. Interest earned on this type of account is generally remitted by the bank or other financial institution directly to the state organization designated to receive IOLTA interest. Some states, such as California, Connecticut, Maryland, New York, and Ohio have enacted statutes detailing the disposition of interest paid on IOLTA accounts. In Indiana and Pennsylvania, the IOLTA programs were originally established by statute, and these programs were later administered by the courts. These two states, and 42 others, now have their IOLTA rules overseen by their state’s highest court, with the actual writings appearing in the state’s rules of professional conduct. The remaining state, Virginia, had their legislature override the Virginia Supreme Court resulting in a voluntary program in that state.
With an IOLTA account, automatic debits appear on the bank statements for the interest paid to the designated recipient. This type of trust account is commonly used by personal injury attorneys. The attorney could be working on many cases that take several years to resolve. When the case is settled, the award is deposited into the IOLTA account. Checks are then written to various parties to cover expenses, to the attorney to cover his fees and case-related costs, and the remainder goes to the client. Funds are distributed promptly, resulting in very little interest being earned.
This is used if the attorney determines that a separate account should be set up for a specific client. This is strictly a practical consideration and is done at the attorney's discretion under guidance promulgated by the applicable state bar association.
This type of account may be used for the proceeds of property sold in a divorce or an estate. The amount deposited could be significant. These funds may not be distributed immediately. The interest should then go to the client rather than to the IOLTA program. However, exact treatment and functionality of these accounts may vary by state. Therefore, the appropriate bar association must be contacted to determine proper rules, regulations, and handling.
Finding the specific trust accounts can be difficult. The attorney should be asked in the initial interview about the location of all trust accounts and whether he or she is the trustee of any accounts. IRP printouts may reveal trust accounts under the attorney's name. An EINAD may disclose other names and identification numbers under which the attorney has bank accounts.
Interest earned on the pooled trust account funds and paid over to the IOLTA program or its designated organization is not taxable to the clients, the attorney, or the organization itself. However, interest earned on the segregated trust funds is taxable to the clients for whose benefit they were established. Rev. Rul. 87-2, 1987-1 C.B. 18.
The attorney should be able to provide an accounting of any amounts in the trust accounts. Detailed schedules should be maintained naming the client for whom assets are held, the type of asset held in trust, and its value. There should also appear on the attorney’s balance sheet a liability account (e.g., “Liability for Client Trust Accounts”) equal in value to the total amount of the schedule(s) and the balance(s) of the trust account(s).
Each state's bar association imposes different criteria for conducting an examination of trust accounts. For example, the California State Bar does not presently conduct random audits of its members' trust accounts. The accounts are only examined if a complaint is received. Examiners should contact the relevant state bar association to determine local policies, as any available examination report can assist with the examiner’s work on these accounts.
Since many attorneys compute gross income based on withdrawals from the client trust account, analysis of that account is obviously the first step in the audit process. However, an attorney may deposit fees into any other personal or business account, or the income may bypass bank accounts altogether. Therefore, the auditor should carefully examine deposits into all bank accounts, and also account for personal living expenses and other cash expenditures. Furthermore, care should be taken to identify loans and other nontaxable sources of income during the initial interview.
Examiners should be aware that attorneys and law firms may have sources of revenue other than general practice, litigation, tax, and probate fees. They may also receive revenue from performing services as board directors for clients and non-clients, speaker’s honoraria, and other outside professional activities. Inquiries about these types of revenue should be made during the initial interview.
Attorneys, particularly those working on a contingency fee basis, may advance costs and other expenses for their clients. Such expenses can include, but are not limited to, reproduction costs, court reporting and stenographic costs, filing fees, travel expenses, and communication costs (i.e., long distance telephone calls, etc.). These will normally appear in an asset account such as Unbilled Advanced Client Costs (until they are actually billed, of course). The examiner should determine if the reimbursements received from the client have been reflected in taxable income through either inclusion in gross receipts or as an offset to the actual expense. For further discussion, see Chapter 3.
Attorneys may refuse to provide documents which are commonly used in examinations claiming attorney-client privilege. This can include a client list, general ledger, client ledger cards, invoices, cancelled checks, and client trust accounts. The attorney client privilege is specific as to what material qualifies for protection. The following is a discussion of some of the issues that an examiner may encounter regarding the claim of privilege and a discussion of relevant case law.
All court cases in this section are categorized and cited in Exhibit 1-2.
The historical basis of the privilege and how the attorney-client privilege applies is well laid out in In re Colton, 201 F. Supp. 13, 15 (S.D. N.Y. 1961), aff’d. 306 F.2d 633 (2nd Cir. 1962) as follows:
The attorney-client privilege as developed at common law was originally a privilege of the attorney, permitting him to keep the secrets confided in him by his client and thus preserve his honor. In the eighteenth century, when the desire for truth overcame the wish to protect the honor of witnesses and several testimonial privileges disappeared, the attorney-client privilege was retained, on the new theory that it was necessary to encourage clients to make the fullest disclosures to their attorneys, to enable latter properly to advise the clients. This is the basis of the privilege today.
The four general elements of the attorney-client privilege are summarized in U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). These are as follows:
"Generally it may be said that the attorney-client privilege applies only if:
- the asserted holder of the privilege is or sought to become a client;
- the person to whom the communication was made:
- is a member of the bar of a court, or his subordinate and
- in connection with this communication is acting as a lawyer;
- the communication relates to a fact of which the attorney was informed:
- by his client
- without the presence of strangers
- for the purpose of securing primarily either:
- an opinion of law,
- legal services, or
- assistance in some legal proceeding, and not
- for the purpose of committing a crime or tort; and
- the privilege has been:
- claimed, and
- not waived by the client."
With the enactment of IRC § 7525 by RRA 1998, the application of the attorney-client privilege was extended to communications between a taxpayer and any “federally authorized tax practitioner” including accountants, to the extent that such communications would be considered privileged communications if they were between a taxpayer and an attorney. More information about practitioner-taxpayer privilege can be found in IRM section 220.127.116.11.
Colton also covers issues relating to fee arrangements and client identity. The case states that neither of these issues falls under what could be considered privileged communication between an attorney and his or her client, as neither is a confidential communication between the attorney and the client.
In Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), the Ninth Circuit found an exception to the general rule that fee arrangements are not within the attorney-client privilege. In Osterhoudt, the Ninth Circuit stated that:
The purpose of the attorney-client privilege is to protect every person's right to confide in counsel free from the apprehension of disclosure of confidential communications. Fee arrangements usually fall outside the scope of the privilege simply because such information ordinarily reveals no confidential professional communication between attorney and client, and not because such information may not be incriminating.
In re Osterhoudt, 722 F.2d 591 (9th Cir. 1983) (citations omitted).
In discussing case law related to the disclosure of a client’s name, the Ninth Circuit explained:
Hodge & Zweig and other subsequent cases have mistakenly formulated the exception not in terms of the principle itself, but rather in terms of this example of circumstances in which the principle is likely to apply. The principle of Baird was not that the privilege applied because the identity of the client was incriminating, but because in the circumstances of the case disclosure of the identity of the client was in substance a disclosure of the confidential communication in the professional relationship between the client and the attorney.
In re Osterhoudt, 722 F.2d at 593.
Thus, the general rule is that a client’s identity is not privileged information. Only in those very rare cases where the disclosure of the very name of the client would constitute disclosure of the nature of the communication between the client and the attorney may the issue arise. See also, In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 998 (11th Cir. 1992); In re Grand Jury Subpoenas (Anderson), 906 F.2d 1485, 1491 (10th Cir. 1990); Tornay v. United States, 840 F.2d 1424, 1428 (9th Cir 1988); In re Grand Jury Subpoena (De Guerin), 926 F.2d 1423, 1431 (5th Cir 1991); United States v. Liebman, 742 F.2d 807 (3d Cir 1984); Vingelli v. U.S. Drug Enforcement Agency, 992 F.2d 449, 452-453 (2d Cir. 1993).
When the taxpayer/attorney still refuses to submit documents based on attorney-client privilege, it may be necessary to issue a summons pursuant to IRC § 7602.
In Reisman v. Caplin, 375 U.S. 440 (1964), the Supreme Court noted in dicta that an Internal Revenue summons may be challenged on any appropriate grounds, such as the attorney-client privilege.
In U.S. et al v. Hartigan, 402 F. Supp. 776 (D. Minn. 1975), the IRS issued a summons requesting an attorney’s fee ledger for a particular client. When the IRS sought enforcement of the summons, the attorney argued, among other things, that the ledger was protected by the attorney-client privilege. The Court concluded that summons directing the taxpayer's lawyer to appear before the IRS and to produce his client fee ledger showing charges, fees and expenses along with payments received relating to the taxpayer was properly issued. The client fee ledger did not fit within the attorney-client privilege because it did not constitute confidential communications of the client to the lawyer for obtaining professional advice.
Courts have consistently held that a lawyer’s fee records for a particular client generally are not confidential communications. For example, in Colton, 306 F.2d 633, 638 (2nd Cir. 1962), in discussing the attorney’s argument that his fees charged to a client are confidential, court stated that:
…we see no reason why an attorney should be any less subject to questioning about fees received from a taxpayer than should any other person who has dealt with the taxpayer. There is no further encroachment here upon any confidential relationship than there is in questioning about the existence or date of the relationship. All matters are quite separate and apart from the substance of anything that the client may have revealed to the attorney.
There is a narrow exception to the general rule that the identity of the client and the amount of the fee paid is not privileged information. As a general proposition, the client's ultimate motive for litigation or for retention of an attorney is privileged. See In re Grand Jury Proceedings (Jones), 517 F.2d 666, 674-75 (5th Cir. 1975). Accordingly, correspondence between the attorney and the client which reveals the client's motivation for creation of the attorney-client relationship or possible litigation strategy is protected. Similarly, other documents, which reveal the nature of the services provided, should also fall within the privilege.
However, it should be noted that only such portions of the documents which reveal the client's motivation for creation of the relationship or possible litigation strategy would fall within the privilege. Portions indicating the number of hours billed, the fee arrangement, and the total fees paid would not constitute privileged information. See Gonzalez v. Wella Corporation, 774 F. Supp. 688, 690 (D.P.R. 1991). Thus, a simple invoice requesting payment which reveals nothing more than the amount of the fee would not normally be privileged.
The attorney-client privilege does not cover bank records merely because they derive or involve a law firm's client-trust fund bank account. Gannet v. First National State Bank of New Jersey, 546 F.2d 1072 (3rd Cir. 1976).
Remember, the Service may neither issue nor seek enforcement of a summons if the attorney's case has been referred to the Department of Justice for prosecution. IRC § 7602(d).
In addition, summonses are enforced only after the Service has established the threshold requirements of United States v. Powell, 379 U.S. 48 (1964). Powell requires that the Service show (1) the investigation is being conducted for a legitimate purpose; (2) the information is relevant to the investigation; (3) the information is not already in the Service's possession; and (4) administrative steps required by the Internal Revenue Code have been followed. Id. at 57-58.
The Service's summons power is not absolute. It is limited by traditional privileges, such as the attorney-client privilege. The burden of proving the privilege applies falls upon the person claiming it. The attorney may not assert the privilege for his own benefit.
Regardless of the attorney-client privilege, a summons may not be enforced if the request for information is overly broad or vague. See U. S. v. Tratner, 511 F.2d 248 (7th Cir. 1975). In Tratner, the examiner questioned one particular $10,000 deposit and subsequent withdrawal from the taxpayer’s client escrow account. In requesting information related to the $10,000 transactions, the examiner issued a summons requesting any and all information related to the escrow account, or any other bank accounts. The Seventh Circuit held this request was overly broad.
Generally, attorneys cannot refuse to provide information required by information reporting statutes based upon the attorney-client privilege. For example in United States v. Goldberger & Dublin, P.C., 935 F.2d 501 (2nd Cir. 1991), the court held that, absent special circumstances, attorneys were required to disclose client information on Forms 8300 pursuant to IRC § 6050I. See also United States v. Leventhal, 961 F.2d 936 (11th Cir. 1992). Moreover, withholding the names of clients or fee arrangements because of state ethical rules is not a “special circumstance” that would protect this information from disclosure. In summons enforcement actions, which involve Federal law, it is the Federal common law of privilege that applies. Goldberger, 935 F.2d at 505.
While Leventhal recognized "a narrow exception to this general rule where disclosure of a nonprivileged attorney-client communication also would reveal privileged information," the court found this "last link" doctrine was not applicable where the clients involved in the cash transactions were already under indictment. Id. at 940-941. The court rejected out of hand the argument that a confidential communication about criminal activity may be inferred from consultation with a criminal law specialist. Id. at 941.
If non filing or improper filing of Forms 8300 are discovered during an examination, contact the Fraud/BSA division to get a specialist to work that issue.
When an attorney refuses to provide information based upon attorney-client privilege, we can give them a list of the court cases and discuss the following general principles, when applicable:
- Generally, the attorney-client privilege must be claimed by the client and the privilege must not have been previously waived. Any disclosure of privileged communication to a third party or consent of disclosure would result in waiver of the privilege. If the client has no knowledge of the request or asks that the privilege be invoked on his or her behalf, the attorney may claim the privilege on the client's behalf. The attorney may not claim the privilege for his or her own benefit.
- The privilege protects the disclosure of confidential communications between client and attorney.
- As a general rule, the identity of an attorney's client and the nature of his or her fee arrangement is not a confidential communication protected by the attorney-client privilege.
- A summons prepared by the IRS in good faith will be enforced.
- The burden is on the claimant to prove attorney-client privilege.
As a "general rule," where a party demonstrates that there is a legitimate need for a court to require disclosure of such matters, the identity of an attorney's clients and the nature of his or her fee arrangements with his or her clients are not confidential communications protected by the attorney-client privilege.
History and Basic Elements
In re Colton, 201 F.Supp.13, aff’d 306 F.2d 633 (2nd Cir. 1962)
Fee Arrangements and Client Identity
Osterhoudt v. United States, 722 F.2d 591 (9th Cir. 1983)
U.S. et al v. Hartigan, 402 F. Supp. 776 (D. Minn. 1975)
United States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974)
In re Colton, 201 F.Supp.13 (S.D. NY1961), aff’d 306 F.2d 633 (2nd Cir. 1962)
Tillotson v. Boughner, 350 F.2d 663 (7th Cir. 1965). But see In re Grand Jury Subpoena, 204 F.3d 516 (4th Cir. 2000)
Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960)
Note: the identity of a client may be privileged when that information would in effect reveal the substance of a confidential communication. For example, an attorney cannot be compelled to reveal the name of a client on whose behalf attorney anonymously paid taxes. This was what was at issue in the Tillotson and Baird cases.
Burden on the Claimant
Reisman v. Caplin, 375 U.S. 440, 84 S. Ct. 508 (1964)
United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961)
United States v. Gurtner, 474 F.2d 297 (9th Cir. 1973)
Information given to attorney to prepare income tax returns that are disclosed to the government is not confidential.
Colton v. United States, Supra
United States v. Willis, 565 F. Supp. 1186 (S.D. Iowa 1983)
U.S. v. Cote, 456 F.2d 142 (8th Cir. 1972)
Attorney-Client Trust Fund
Gannet v. First National State Bank of New Jersey, 546 F.2d 1072 (3rd Cir. 1976)
Information Returns - IRC 6050I Form 8300
United States v. Goldberger & Dubin, P.C., 935 F.2d 501 (2nd Cir. 1991)
Federal, not State law, applies in determining whether the privilege exists
Colton v. United States, Supra.
Fed. R. Evid. 501
Enforcement of Summons: Attorney-Client Privilege
Summonses must be issued in good faith.
United States v. Powell, 379 U.S. 48 (1964)
Colton v. United States, Supra.
United States v. Hartigan, Supra.
Dallas L. Holifield v. United States, 909 F.2d 201 (7th Cir. 1990)
United States v. Tratner, 511 F.2d 248 (7th Cir. 1975)