- 4.11.51 Return Preparer Program
- 22.214.171.124 References
- 126.96.36.199 Overview of Return Preparer Program
- 188.8.131.52 Return Preparer Coordinator
- 184.108.40.206 Noncompliant Return Preparers Overview
- 220.127.116.11.1 Noncompliant Return Preparers
- 18.104.22.168.2 Information Provided About Noncompliant Preparers
- 22.214.171.124.3 Ghost Preparers
- 126.96.36.199.4 Representation Overview
- 188.8.131.52.5 Initiating a Preparer Project
- 184.108.40.206 Preparer Penalties Overview
- 220.127.116.11 Third Party Contacts
- 18.104.22.168 Return Preparer Referrals
- 22.214.171.124.1 SB/SE and LB&I Return Preparer Referrals
- 126.96.36.199.2 Return Preparer Office (RPO) Referrals
- 188.8.131.52.3 Office of Professional Responsibility (OPR) Referrals
- 184.108.40.206.4 Lead Development Center Referrals
- 220.127.116.11.5 Criminal Investigation Referrals
- 18.104.22.168 Return Preparer Misconduct
- 22.214.171.124 Power of Attorney Rights and Responsibilities
Part 4. Examining Process
Chapter 11. Examining Officers Guide (EOG)
Section 51. Return Preparer Program
September 23, 2016
(1) This transmits revised IRM 4.11.51, Examining Officer’s Guide (EOG), Return Preparer Program.
(1) The Examining Officer's Guide serves as a quick reference guide for Return Preparer Program procedures on examinations. It acts as an index, providing a guide to actions needed for a given examination activity and refers the reader to supporting references.
|IRM Reference||Description of Change|
|IRM 126.96.36.199||Added additional references.|
|IRM 188.8.131.52||Moved content to other sections and updated overview of Return Preparer Program.|
|IRM 184.108.40.206||Moved content to IRM 220.127.116.11 and re-purposed for Return Preparer Coordinator definition.|
|IRM 18.104.22.168||Added additional sections to include information about Noncompliant Return Preparer, Ghost Preparers, Annual Filing Season Program, and Initiating a Preparer Project.|
|IRM 22.214.171.124||Moved content to IRM 126.96.36.199.5. Re-purposed section to provide guidance on tax return preparer penalties.|
|IRM 188.8.131.52||Added paragraphs to provide additional guidance to examiners.|
|IRM 184.108.40.206||Added a section to provide guidance to SB/SE and Large Business & International examiners on Return Preparer Referrals. Incorporated Interim Guidance on SB/SE Referrals and Office of Professional Responsibility Referrals. Added referrals to Criminal Investigation.|
|IRM 220.127.116.11||Added a section to provide guidance to examiners on Return Preparer Misconduct and to cross reference to IRM 25.24 Return Preparer Misconduct Program.|
|IRM 18.104.22.168||Added a section to cross reference to IRM 4.11.55 Power of Attorney Rights and Responsibilities.|
SB/SE-04-1014-0039, Interim Guidance on Office of Professional Responsibility (OPR) Referrals.
SB/SE-04-1115-0074, Reissued Interim Guidance on Office of Professional Responsibility (OPR) Referrals.
SB/SE-04-0216-0010, Interim Guidance on SB/SE Return Preparer Referrals.
Acting Director, Examination Field and Campus Policy, SE:S:E:HQ:EFCP
References for Return Preparer Program.
IRC 6107, Tax Return Preparer Must Furnish Copy of Return to Taxpayer and Must Retain a Copy or List
IRC 6103(k)(6) , Disclosure by certain officers and employees for investigative purposes
IRC 6109, Identifying Numbers
IRC 6694 , Understatement of taxpayer’s liability by tax return preparer
IRC 6695 , Other assessable penalties with respect to the preparation of tax returns for other persons
IRC 6671, Rules for application of assessable penalties
IRC 6700 , Promoting abusive tax shelters, etc.
IRC 6701 , Penalties for aiding and abetting understatement of tax liability
CFR 1.6695-1, Other assessable penalties with respect to the preparation of tax returns for other persons (b) Failure to sign return
CFR 301.7602-2(b), Third Party Contacts
CFR 301.7701-15, Tax Return Preparer
Rev. Proc. 81-38, Limited practice without enrollment
Rev. Proc. 2014-42, Annual Filing Season Program
IRM 22.214.171.124, Policy Statement 25-2 Return Preparer Misconduct
Delegation Order SBSE 145.7, Authority to Request and Inspect Preparers Records
IRM 4.1.10, Return Preparer Program Coordinator
IRM 4.8.10, Notice of Determination of Worker Classification
IRM 4.10.2 ,Preparer Steering Committee-SB/SE
IRM 4.10.3, Examination Techniques
IRM 4.11.55, Power of Attorney Rights and Responsibilities
IRM 4.11.57, Third Party Contacts
IRM 4.32.2, The Abusive Transactions (AT) Process
IRM 11.3.21, Investigative Techniques
IRM 20.1.6, Preparer, Promoter, Material Advisor Penalties
IRM 126.96.36.199.6, Program Action Cases
IRM 25.1.2, Recognizing and Developing Fraud
IRM 188.8.131.52, Return Preparers
IRM 25.24.5, Return Preparer Misconduct-Field Examination
IRM 25.27.1, Third Party Contacts
Letter 3173, Third Party Contacts
Letter 3164-N, Third Party Contact to Preparers
The Return Preparer Program (RPP) is an agency-wide effort to enforce compliance of tax return preparers. Tax return preparers are a critical component of tax administration and provide a unique opportunity to impact taxpayer behavior and compliance with tax laws. The IRS encourages compliance among tax return preparers through a variety of means by providing targeted enforcement activities to identify and address the most egregious return preparers. The Return Preparer Program includes all tax return preparers and not only self-identified return preparers. All business units under the Services and Enforcement Organization have tax return preparer strategies, including the Return Preparer Office (RPO), the Office of Professional Responsibility (OPR), Return Integrity Compliance Services (W&I RICS), and Examination.
The Return Preparer Coordinator (RPC) is responsible for planning and coordinating the implementation of the Area and National Return Preparer Strategy. RPCs provide direction, knowledge and guidance on tax return preparer related issues. Their duties include: receiving and evaluating referrals regarding potential preparer misconduct, initiating and monitoring Program Action Cases and assisting with and reviewing preparer penalty cases.
Examples of when to contact your RPC include, but are not limited to:
A return that appears to have questionable preparation issues
Suspected preparer misconduct
Questionable Power of Attorney
Assistance in obtaining information on a Preparer Tax Identification Number (PTIN)
Assistance with completing a preparer referral
Questions about documentation needed to support a preparer referral
Assistance with establishing and completing a preparer penalty case
RPCs are the liaison between field employees and the Return Preparer Office, Office of Professional Responsibility and IRS Headquarter functions. All questions and concerns should be elevated through the Area RPC. For more guidance on Return Preparer Coordinator duties, refer to IRM 4.1.10, Return Preparer Program Coordinator.
The Return Preparer Program (RPP) allows for the examination of returns prepared by a particular tax return preparer, if information indicates a pattern of noncompliance. The examination of a tax return preparer’s client’s tax returns without the approval of the Area Director is prohibited. During the examination of the noncompliant return preparer, erroneously filed tax returns may be identified.
A tax return preparer is anyone who prepares for compensation or employs one or more persons to prepare for compensation, any tax return or claim for refund. The definition of a tax return preparer is addressed in CFR 301.7701-15. All tax return preparers must properly identify themselves with their Preparer Taxpayer Identification Number on all tax returns, in which they were compensated for preparing.
The Return Preparer Coordinator (RPC) and the Area Preparer Steering Committee (PSC) gather information on tax return preparers from various sources. This includes:
Information received from examiners (main source)
Preparer penalty records
Referrals from other functions
See IRM 184.108.40.206.1, PAC Inventory Sources.
The RPC maintains files containing information on return preparer activities. When a pattern of noncompliance is recognized, the IRS will consider action to prohibit the tax return preparer from practicing before the IRS. Preparer action will be limited to cases where information indicates a tax return preparer has engaged in a widespread practice of making material errors. This conduct demonstrates intentional misconduct or clear incompetence in preparing income tax returns.
When submitting information about a noncompliant return preparer, be as specific as possible about noncompliance. Provide as much of the following information as possible:
Identification of the tax return preparer
Name and taxpayer identifying number of the examined taxpayer(s)
Examples of the noncompliance
First two pages of the examiner’s report
Source of the information which resulted in a referral
Copies of preparer penalties asserted
See IRM 220.127.116.11.1, for submitting referrals about noncompliant preparers.
Ghost preparers are preparers who fail to properly identify themselves in accordance with IRC 6109, Identifying Numbers. All compensated return preparers must have a Preparer Tax Identification Number (PTIN). Ghost preparers are defined as preparers who:
Omit any identification information and the return appears to be self-prepared
Report a false or fabricated identification number on the tax return filed with the IRS
Report a valid identification number, which is assigned to another individual on the tax return filed with the IRS
If an examiner encounters a potential ghost preparer issue during an examination, the following should be considered:
IRC 6695(b), Failure to Sign Return, and/or IRC 6695(c), Failure to Furnish Identifying Number
A referral to the RPC
The examiner should attempt to obtain as much information about the tax return preparer from the taxpayer as possible in order to support the penalty.
The IRS has a voluntary program called the Annual Filing Season Program (AFSP) that recognizes the efforts of noncredentialed return preparers who aspire to a higher level of professionalism. Those who participate can meet the requirements by obtaining a certain number of continuing education hours in preparation for a specific tax year. They must also renew their preparer tax identification number (PTIN) for the upcoming year and consent to adhere to the obligations in Treasury Department Circular 230, Subpart B, Section 10.51.
Participation in the AFSP provides unenrolled return preparers with limited representation rights. They are permitted to represent taxpayers before the IRS under Rev. Proc. 2014-42, which supersedes Rev. Proc. 81-38. Unenrolled return preparers are defined in IRM 18.104.22.168.1.1, Unenrolled Return Preparer.
According to Rev. Proc. 2014-42, in order for unenrolled return preparers to represent taxpayers for tax returns filed after December 31, 2015, they must:
Have a valid AFSP Record of Completion in the calendar year(s) in which the tax return was filed, and
Have a valid AFSP Record of Completion in the year(s) in which the representation occurs.
Examiners can verify if an unenrolled return preparer holds an AFSP Record of Completion by searching the Directory of Federal Tax Return Preparers with Credentials and Select Qualifications on www.irs.gov (http://irs.treasury.gov/rpo/rpo.jsf).
When the information compiled by the Return Preparer Coordinator (RPC) or Preparer Steering Committee (PSC) indicates a pattern of noncompliance exists with the returns prepared, action to prohibit the preparer from practicing before the IRS is considered.
Examiners should request a list of all individual and business returns prepared by the preparer under the authority of IRC 6107, Tax Return Preparer Must Furnish Copy of Return to Taxpayer and Must Retain a Copy or List for developmental purposes during the examination of the preparer penalty case.
The RPC orders a sample of returns from these lists as well as the preparer inventory list (PIL) and reviews them for audit potential. If the RPC determines there is sufficient audit potential in the sample, the RPC will request concurrence from the PSC.
Upon concurrence, the RPC will obtain clearance from the Lead Development Center (LDC) (IRM 22.214.171.124.4) and CI (IRM 126.96.36.199.3) to ensure that there are no conflicts with an existing promoter or CI investigation.
Upon receipt of LDC and CI clearances, the PSC will submit a program action request memorandum to the Area Director through the Territory Manager, for approval. If concurrence is not obtained, follow standard conflict procedures.
If approved, the RPC will establish the cases on AIMS using source code 49 and local project and tracking codes. These codes (including source code 49) will be used on all related pick-ups, subsequent and prior years.
If not approved, no action will be taken and the tax return preparer project for the preparer will be closed.
By pursuing preparer penalties when warranted, preparers will be educated on proper tax preparation techniques and procedures. Addressing a tax return preparer’s noncompliant behavior will have an impact on the tax returns they prepare. Correcting an unlawful tax return preparer can have an exponential impact on the tax compliance of many tax returns.
During an examination of the client taxpayer’s return, do not disclose a preparer penalty decision to the taxpayer or preparer.
The examination case of the related client should be closed prior to establishing the preparer penalty case.
Consideration of tax return preparer penalties under IRC 6694 and IRC 6695 is required on all examinations.
Examination employees should consider compliance of the tax return preparer during every examination. SB/SE and LB&I examination employees address noncompliance of return preparers through proposed preparer penalties and referrals to the Area’s RPC. Examination employees should not send referrals to Return Preparer Office (RPO) to address noncompliant return preparers in lieu of penalty consideration. Some common examples of noncompliance that should have penalty considerations and a referral to the Area’s RPC include:
PTIN requirement violations
Egregious errors and/or omissions on client tax returns, and
A pattern of noncompliance by the tax return preparer
If a tax return preparer is not tax compliant, the examination employee should discuss the potential for a tax return preparer information referral with the group manager and Area RPC.
Examiners can find information on IRC 6694 , Understatement of Taxpayer's Liability by Tax Return Preparer in IRM 20.2.6, Preparer, Promoter, Material Advisor Penalties.
IRC 6694(a), Understatement Due to Unreasonable Position
IRC 6694(b), Understatement Due to Willful or Reckless Conduct
A mandatory referral to the OPR is required when IRC 6694(b) penalties are asserted.
IRC 6695, Other Assessable Penalties With Respect to the Preparation of Tax Returns for Other Persons. See IRM 188.8.131.52, IRC 6695 Penalties That May Apply to a Tax Return Preparer, for detailed information regarding IRC 6695 penalties.
IRC 6695 penalties can be asserted in conjunction with IRC 6694 penalties.
Anyone who is paid to prepare or assist in the preparation of a tax return/claim must obtain a Preparer Tax Identification Number (PTIN) per CFR 1.6109-2(a)(2)(ii). A PTIN cannot be shared among multiple individuals in a firm – each person must obtain and use their own PTIN. The PTIN must be included in the tax return preparer section of the tax return filed with the IRS. If the PTIN is not present on the return prepared then the tax return preparer is subject to an IRC 6695(c), Failure to Furnish Identifying Number , penalty. The PTIN must be nine (9) characters beginning with a ‘P’. Anything else is not acceptable and is subject to IRC 6695(c) penalty.
IRC 6671, Rules for Application of Assessable Penalties, treats preparer penalties as taxes. Therefore, when an examiner makes contact to determine if the preparer/promoter is liable for a penalty, third party notification may be required.
Third-party contact defined. Contacts subject to IRC 7602(c), and this regulation shall be called “third-party contacts.” A third-party contact is a communication which —
1 ) Is initiated by an IRS employee;
2) Is made to a person other than the taxpayer;
3) Is made with respect to the determination or collection of the tax liability of such taxpayer;
4) Discloses the identity of the taxpayer being investigated; and
5) Discloses the association of the IRS employee with the IRS.
If the examination of a preparer’s client’s tax returns are completed for the purpose of determining whether the preparer is subject to a preparer penalty AND if the five requirements found in the definition of CFR 301.7602-2(b) are met, third party contact procedures must be followed.
In order to adhere to third party contact procedures, examiners should advise taxpayers they were selected for audit as part of a preparer compliance review and ask if the taxpayer fears reprisal. Examiners should not disclose any more information than is necessary to conduct the examination of the client taxpayer.
Contacts subject to IRC 7602(c) and this regulation shall be called third-party contacts. A third-party contact is a communication which—
Is initiated by an IRS employee;
Is made to a person other than the taxpayer;
Is made with respect to the determination or collection of the tax liability of such taxpayer;
Discloses the identity of the taxpayer being investigated; and
Discloses the association of the IRS employee with the IRS.
In every third party contact (IRM 4.11.57,) the examiner must advise the third party contact (including client taxpayer) before the conclusion of the initial interview that by law the IRS is required to provide his or her name to the preparer/taxpayer as a third party contact (IRM 184.108.40.206.5). There is an exception to this notification if the third party believes that notifying the taxpayer may result in reprisal against them or any person. The examiner should accept the third party’s response on face value. In addition, the examiner may make the reprisal determination based on the facts and circumstances of the case.
If any reprisal concerns exist, the examiner will complete Form 12175, Third Party Contact Report Form, with only the information in IRM 220.127.116.11.2.3. The Form 12175 is forwarded to the Area Third Party Contact Coordinator. The information on Form 12175 is retained in a database, but will not be included in the list of persons contacted (Letter 3173,) when provided to the taxpayer.
If the preparer’s/promoter’s clients are being contacted to start an examination of the client’s return, then this is not considered a third party contact since the purpose of the contact is to determine the client’s tax liability and not whether the preparer/promoter is subject to a penalty. This is an example of a non-PAC audit.
If during a compliance review of a preparer’s EITC files it is discovered that a client’s return appears to have overstated EITC, the contact with the client is NOT considered a third party contact.
Refer to IRM 18.104.22.168, Third-Party Notification in PACs, for additional information.
Refer to IRM 22.214.171.124, Program Action Cases Overview, for information on PACs.
Caution should be taken to not disclose any tax information of a confidential nature when contacts are made with third parties (IRM 126.96.36.199.1.4(3)).
IRC 6103(k)(6),provides that Service employees may make investigative disclosures to the extent necessary in obtaining information, which is not otherwise reasonably available, with respect to the correct determination of tax, liability for tax, or the amount to be collected. See IRM 188.8.131.52, Requirements for Investigative Disclosures, for additional guidance.
This section provides guidance on preparing and submitting return preparer referrals.
When appropriate, SB/SE examiners will make a referral to their Area RPC on Form 14719, Small Business/Self Employed (SB/SE) Return Preparer Referral. Form 14719 should be forwarded via e-mail to the Area RPC where the practitioner resides. The e-mail address for your Area RPC can be found on Form 14719.
When appropriate, LB&I examiners will e–mail the LB&I RPC explaining the reason for the referral, including the tax return preparer’s name, address, and identification number, the taxpayer’s name and identification number, and an explanation of the noncompliance identified on the part of the tax return preparer.
Examination employees should also adhere to procedures for making other types of tax return preparer referrals per IRM 4.11.55, Examination Officers Guide (EOG), Power of Attorney Rights and Responsibilities. Examiners may contact their Area’s RPC for guidance on making referrals.
SB/SE and LB&I examination employees should not send referrals to the RPO in lieu of penalty consideration.
The public and IRS non-enforcement employees may send a referral to RPO using Form 14157, , Return Preparer Complaint, for suspected misconduct. Based on specific criteria, the RPO will forward the referral to the Exam Area Return Preparer Coordinator (RPC) for consideration. RPO generally does not send a referral to the RPC until RPO receives at least three or more complaints against a tax return preparer, unless the tax return preparer is currently under examination. Form 14157 has instructions on when to use the form and when to send a referral to RPO. Form 14157 may be submitted through the RPO e-mail box at *RPO Referrals.
The Office of Professional Responsibility supports the IRS’s strategy to enhance enforcement of the tax law by ensuring that tax professionals adhere to tax practice standards and follow the law. OPR is the governing body responsible for interpreting and applying the Regulations Governing Practice before the Internal Revenue Service (Circular 230).
OPR addresses behavior that is willful, reckless or incompetent. OPR’s mission is to educate and reach out to people who practice before the IRS and who are subject to Circular 230. OPR has jurisdiction over practice by attorneys, certified public accountants, enrolled agents, enrolled actuaries and appraisers. OPR does not regulate unenrolled preparers. Any matters of misconduct on the part of an unenrolled preparer should be referred to the local RPC for consideration and resolution.
SB/SE and LB&I employees should send referrals to the OPR for disreputable conduct and incompetence involving attorneys, certified public accountants, enrolled agents, enrolled actuaries and appraisers. Examples of misconduct under Circular 230 that may warrant a referral to OPR are found at IRM 184.108.40.206, Referrals to the Office of Professional Responsibility. SB/SE employees may send referrals to OPR after they take Title 26 enforcement actions (preparer penalties). Detailed information on referrals to OPR may be found in IRM 220.127.116.11, Referrals to the Office of Professional Responsibility, and IRM 18.104.22.168.2, Referral to the Office of Professional Responsibility (OPR). Examiners should review IRM 22.214.171.124 and may consult with the Area Return Preparer Coordinator (RPC) when making OPR referrals.
Form 8484, Suspected Practitioner Misconduct Report for the Office of Professional Responsibility, is the form used to make a referral to OPR. Managerial approval of Form 8484 is not required. OPR will provide guidance and feedback to field/agency sources regarding essential referral criteria for each relevant Circular 230 provision.
For IRC 6694(b), these mandatory referrals are made to OPR in matters where preparer penalties are asserted when there is willful or reckless conduct.
The OPR web site has a searchable database containing the names of all the individuals currently under suspension or disbarment.
Form 14624, Office of Professional Responsibility (OPR) Referral, is used for referrals from OPR to SB/SE and LB&I.
The Examiner will take the following steps when they receive a Form 14624 referral case from OPR: Within 45 days of receipt from OPR, the examiner will complete Part V of Form 14624 and return it to the OPR then take the following actions.
If the referral is surveyed, complete the following:
Form 1900, Income Tax Survey After Assignment , with managerial concurrence,
Notify OPR of Survey. Forward Form 14624 and a copy of Form 1900 to OPR,
Close case file.
If an examination is conducted:
Complete Part III of Form 14624,
Return Form 14624 to OPR prior to the case closing from the group.
The SB/SE Lead Development Center (LDC):
receives, identifies and develops leads on individuals and entities that promote or aid in the promotion of abusive tax schemes and/or abusive tax return preparers,
authorizes civil investigations when necessary,
evaluates and develops information from internal and external sources.
The LDC is responsible for the approval of all SB/SE IRC 6700 and IRC 6701 investigations of promoters/preparers. The LDC coordinates with Criminal Investigation, Counsel and the Department of Justice (DOJ) to ensure that appropriate penalties and/or sanctions are pursued when warranted, and provides field support for ongoing investigations.
The LDC authorizes investigations into potentially abusive tax return preparers as well as promoters of abusive tax schemes. Authorized investigations are assigned to specially trained examiners through the Abusive Transaction Issues Area PSP Coordinator. A definition of abusive transactions can be found in IRM 126.96.36.199, Abusive Transactions Defined.
To report suspected promoters of illegal tax schemes or abusive tax return preparers, e-mail a completed Form 14242, Report Suspected Abusive Tax Promotions or Preparers, as well as any available documentation regarding the promotion or activity to *LDC. You can also mail or fax the information to:
IRS Lead Development Center
24000 Avila Road
Laguna Niguel, CA 92677-3405
If a tax return preparer fraud referral to Criminal Investigations is considered, contact your local Return Preparer Coordinator (RPC) and Fraud Technical Advisor (FTA) to discuss the suspected return preparer fraud.
Some examples of return preparer fraud include:
Inflating income, deductions, credits, or withholding without the taxpayer’s knowledge
Diverting refunds into the bank account of the return preparer
Referrals to Criminal Investigation (CI) can be made on Form 2797, Referral Report of Potential Criminal Fraud Cases. Examiners should develop the issue to establish firm indicators of fraud/willfulness, including, but not limited to:
A description of the firm indications/ willfulness
Taxpayer’s explanation of the firm indications/ willfulness
The estimated criminal liability
If the criminal referral is declined, or if the criminal case is resolved, examiners should retain a copy of the related taxpayer’s report (Form 4549) and relevant workpapers so the IRC 6694 civil return preparer penalties may be pursued.. See IRM 188.8.131.52, Return Preparers, IRM 184.108.40.206, Return Preparer Fraud, IRM 25.24, Return Preparer Misconduct Program, and Return Preparer Misconduct , for additional information.
Examiners should be alert to unscrupulous tax return preparers. Unscrupulous tax return preparers may alter tax data and/or misdirect a portion or all of a refund. The IRS has established a Policy Statement (P 25-2) per IRM 1.2.24, Servicewide Policies and Authorities - Policy Statements for Special Topics, that covers procedures for victims of tax return preparer misconduct.
If an examiner is made aware of tax return preparer misconduct by a taxpayer, they will take actions to correct the taxpayer’s account. Please see IRM 25.24, Return Preparer Misconduct Program, for more information.
See IRM 4.11.55, Examining Officers Guide (EOG), Power of Attorney Rights and Responsibilities, for uniform guidance to employees who interact with representatives and/or who receive and inspect Form 2848, Power of Attorney and Declaration of Representative (POA), Form 8821, Tax Information Authorization (TIA), and similar documents.