- 5.1.23 Taxpayer Representation
- 126.96.36.199 Overview of Taxpayer Representation
- 188.8.131.52 Taxpayer Representation/Authorization
- 184.108.40.206 Third Party Authorizations
- 220.127.116.11.1 Centralized Authorization File
- 18.104.22.168.2 Authority Granted to the Representative, Power of Attorney, or Appointee
- 22.214.171.124.2.1 Authority Granted by Form 2848
- 126.96.36.199.2.2 Form 2848 Factors to Consider
- 188.8.131.52.2.3 Written Communication to a Taxpayers Representative
- 184.108.40.206.3 Authority Granted by Form 8821
- 220.127.116.11.3.1 Form 8821 Considerations
- 18.104.22.168.4 Authority Granted by Form 8655
- 22.214.171.124.5 Military Power of Attorney (POA) for Representation of Deployed Military Personnel
- 126.96.36.199.6 Bankruptcy Authority
- 188.8.131.52 Processing a Third Party Authorization
- 184.108.40.206.1 Case History Recordations
- 220.127.116.11.2 Authorization Document Perfection
- 18.104.22.168.3 Sending the Authorization to the CAF Function
- 22.214.171.124.3.1 Exceptions to Sending a Third Party Authorization to a CAF Unit
- 126.96.36.199.3.2 Authorization Document Retention
- 188.8.131.52.4 Change or Cancel a Third Party Authorization
- 184.108.40.206 By-Passing a Taxpayers Representative
- 220.127.116.11.1 By-Pass Warning Procedures
- 18.104.22.168.1.1 Notifying the Territory Manager
- 22.214.171.124.1.2 Notifying the Area Return Preparer Coordinator
- 126.96.36.199.2 By-Pass Procedures
- 188.8.131.52.3 Procedures After By-Passing the Representative
- 184.108.40.206 Suspected Practitioner Misconduct
- 220.127.116.11.1 Indicators of Practitioner Misconduct
- 18.104.22.168.1.1 Pattern of Inappropriately Attempting to Influence
- 22.214.171.124.1.2 Pattern of Delay
- 126.96.36.199.1.3 Pattern of Significant Omissions
- 188.8.131.52.2 Suspected Practitioner Misconduct Procedure
- 184.108.40.206 Referrals of Suspected Practitioner Misconduct
Part 5. Collecting Process
Chapter 1. Field Collecting Procedures
Section 23. Taxpayer Representation
October 30, 2014
(1) This transmits revised IRM 5.1.23, Field Collecting Procedures, Taxpayer Representation.
(1) IRM 220.127.116.11.2.2(3) updated to reflect the correct office name, add delegation order and IRM references.
(2) IRM 18.104.22.168.2.3(7) updated with reference to new Letter 5427, Incomplete Power of Attorney.
(3) IRM 22.214.171.124.4 updated with procedures for the taxpayer or representative to revoke or withdraw a power of attorney.
(4) Reviewed and updated the IRM where necessary for the following types of editorial changes: legal citations, published forms and documents, phone numbers and web addresses.
Rocco A. Steco
Acting Director, Collection Policy
Small Business/Self Employed
The purpose of this IRM is to provide procedural guidance and instructions for revenue officers and group managers to handle taxpayer representation issues when working Collection cases. This IRM includes the following taxpayer representation procedures:
Third Party Authorizations
Change / Cancel a Third Party Authorization
By-Passing a Taxpayer's Representative
Elevate any questions or concerns regarding these IRM procedures through your group manager (GM).
Every taxpayer is entitled to representation. A taxpayer may either represent him/herself or, with proper written authorization, have someone else represent him/her. A taxpayer's representative must be an individual authorized to practice before the IRS, such as an attorney, certified public accountant, or enrolled agent. Ordinarily, it is not required to research the status of a representative. However, you may choose to verify a representative's eligibility. See IRM 126.96.36.199.1 for research guidance.
A taxpayer may also authorize a third party to receive his/her confidential tax information. These designees may be individuals or entities and do not have to be authorized to practice before the IRS. Third party designees do not represent the taxpayer in matters before the IRS.
This section provides guidance on the types of third party authorization requests that a taxpayer may file and the extent of authority that each authorization may convey to the third party. See IRM 11.3.3, Disclosure to Designees and Practitioners, for additional guidance.
Access Disclosure References for Collection Employees on the Disclosure Web page at: http://discl.web.irs.gov/Function/collection.asp for additional guidance.
A taxpayer may use the following forms to record an authorization made to a third party:
Form 2848, Power of Attorney and Declaration of Representative
Form 8821, Tax Information Authorization
Taxpayers are not required to use Form 2848 or Form 8821 to record a third party authorization. An alternate written format may be acceptable if it meets the requirements for authorizations. IRM 11.3.3, Disclosure to Designees and Practitioners, provides the requirements for authorizations not on these forms.
Records of all third party authorization documents are generally maintained on the automated Centralized Authorization File (CAF). See IRM 188.8.131.52.3.1 for exceptions for sending a third party authorization to the CAF.
The CAF system consists of taxpayer records and representative records.
Taxpayer records consist of modules for which the taxpayer has given third party authorization and cross–references to the records of the involved representative(s) / appointee(s).
Representative records contain the name and address of the representative.
Appointee records contain the name and address of the appointee.
The CAF system will send courtesy copies of notices and communications to the representative/appointee only when the appropriate box is checked on either Line 2 of the Form 2848 or Line 5 of Form 8821.
Use IDRS Command Code CFINK to research third party authorization files.
The purpose of Form 2848 is to allow taxpayers to authorize a third party individual to represent them before the IRS. The representative must be a person eligible to practice before the IRS. The authorization also allows that representative to receive and inspect the taxpayer's confidential tax information.
Form 8821 authorizes the taxpayer to designate any individual, corporation, firm, organization, or partnership to inspect and/or receive their confidential information in any office of the IRS for the type of tax and the years or periods listed on Form 8821. The taxpayer may file their own tax information authorization without using Form 8821, but it must include all the information that is requested on Form 8821.
Form 8821 does not authorize the taxpayer's appointee to advocate any position with respect to the federal tax laws; to execute waivers, consents, or closing agreements; or to otherwise represent the taxpayer before the IRS.
Interaction with the third party should be governed by the authority granted by the specific document.
Form 2848 is used to authorize a third party as the representative or power of attorney.
Form 8821 is used to designate a third party as an appointee to receive confidential tax information.
The major distinction between the forms is:
Form 2848 authorizes an eligible individual to represent the taxpayer before the IRS as well as to receive confidential information. An eligible individual may be an attorney, a Certified Public Accountant (CPA), an enrolled agent, an enrolled actuary, or other designated individual authorized to do so. A complete listing of all eligible individuals can be found in Part II on the Form 2848.
Form 8821 permits the third party appointee to receive return and return information. It does not authorize the third party to represent the taxpayer before the IRS.
The appointee cannot negotiate with the IRS on behalf of the taxpayer, advocate the taxpayer’s position to IRS officials or employees, or perform the acts enumerated in 26 CFR. §601.504(a)(2) through (6), Statement of Procedural Rules, Requirements for filing power of attorney.
The following table summarizes a few of the differences between appointees and representatives:
Differences between Appointees and Representatives A Third Party Appointee (Form 8821): A Power of Attorney (Form 2848): May be an individual or a business entity Must be an individual authorized to represent the taxpayer before the IRS. See items a - r in part II of Form 2848. May inspect tax information May inspect tax information May receive written information May receive tax information May not negotiate or advocate on behalf of the taxpayer May negotiate or advocate on behalf of the taxpayer May not execute waivers, consents, etc., on behalf of the taxpayer May execute waivers, consents, etc., on behalf of the taxpayer May not redelegate the authority to receive the taxpayer’s return or return information to another individual or entity May redelegate his/her authority to represent the taxpayer, but only if specifically authorized by the taxpayer to do so on Line 5 of Form 2848
Form 2848 may authorize an eligible individual, for example, an attorney, a Certified Public Accountant (CPA), an enrolled agent, an enrolled actuary, enrolled retirement plan agent, a student who works in a Low Income Taxpayer Clinic (LITC) or a Student Tax Clinic (STC) Program, or other recognized individual, to:
represent the taxpayer before the IRS,
receive confidential information, and
represent taxpayers before the IRS on collection matters.
Individuals are required to certify their eligibility to practice before the Service on Form 2848. Lawyers, certified public accountants, and enrolled agents (EAs) can represent all taxpayers in all matters before Collection. Enrolled actuaries and enrolled retirement plan agents may only represent on matters specified in Circular 230. In addition, students with a special order from Taxpayer Advocate Service (TAS) may represent taxpayers in collection matter.
Anyone who is under suspension or disbarment is not allowed to represent taxpayers.
Form 2848 is generally input to the CAF so the authorization will be available to all areas and campuses.
Consider the following factors when you receive Form 2848 and follow the specific procedures, as applicable.
The IRS will not honor a Form 2848 if it designates a representative who is not authorized to practice before the Service:
Do not treat Form 2848 as a taxpayer information authorization.
Require an individual who cannot practice before the Service to submit Form 8821 for access to tax information.
A taxpayer may authorize a student who works in a Low Income Taxpayer Clinic (LITC) or Student Tax Clinic Program (STCP) to represent them under a special authorization issued by the Taxpayer Advocate Service (TAS) per Delegation Order 25-18 in IRM 184.108.40.206.
Secure a copy of the special appearance authorization from Taxpayer Advocate Service (TAS) authorizing practice before the IRS and attach it to Form 2848.
A lead attorney or CPA must be listed as a representative, with their name listed on Line 2, and the student’s name on the next line.
A lead attorney or CPA who is listed as a representative on Line 2 may replace the student listed on the next line by submitting such change in writing. A new Form 2848 should be submitted to reflect the name of the new student representative on line 3 following the LITC/STCP Director or Supervisory Attorney/CPA.
The power to sign the taxpayer’s income tax returns can be granted only in limited situations. Refer to Form 2848 instructions to Line 5 and Treasury Regulations 1.6012-1(a)(5)(b)(3) and 1.6061-1(a) for additional information.
For IMF joint accounts, each spouse must execute his or her own power of attorney or tax information authorization on a separate Form 2848 or Form 8821, to designate a representative/appointee.
The taxpayer must sign and authorize each Power of Attorney. Ensure that page two of Form 2848 contains an original taxpayer signature.
The Office of Professional Responsibility (OPR) has found that often, when a practitioner submits a subsequent Form 2848 to include additional / different tax periods / types after the taxpayer has signed the Form 2848, the practitioner will submit a subsequent Form 2848 without the taxpayer's original signature when he /she then learns that his/her client owes a liability for additional years.
It is not acceptable if a practitioner submits a new first page of Form 2848 and simply attaches a photocopy of page two from the original Form 2848 that has the taxpayer's signature.
If you choose to check on the eligibility status of a taxpayer's representative you may use OPR's website at http://irweb.irs.gov/AboutIRS/bu/opr/default.aspx to determine whether a representative is suspended or disbarred from practice before the Internal Revenue Service. Select the "Search for Disciplined Tax Professional" link. OPR's website also contains links that may assist in determining the active status of state licenses.
Generally, a qualified representative is authorized to receive any notice or other written communication required or permitted to be given to the taxpayer in the matter concerning the taxpayer.
Furnish copies to the representative as directed on Form 2848.
Copies of notices and communications are no longer routinely sent to the taxpayer’s representative. Taxpayers can “check the boxes”, to have copies of notices and communications sent to up to two representatives.
IRS employees are not prohibited from providing a copy of a notice or communication to a representative if the box is not checked. If the IRM says that a particular notice should be sent to the POA, then Collection should continue to do so unless/until the IRM is revised to eliminate the requirement. However, representatives should not necessarily expect courtesy copies of notices and communications when the box is not checked.
Furnish copies of communications received from the taxpayer if the communications have a direct bearing on the nature of his/her representation.
Ensure that the POA is authorized to receive taxpayer data on all modules contained in any communication you plan to send to the POA.
In a case where you have sent a levy, Letter 937, Transmittal Letter For Power of Attorney, generates systemically when Form 668-A (C) (DO), Notice of Levy, is issued if POA data exists on the ICS case and the POA is in good standing. Ensure the Form 2848 covers all the periods on the levy and that the POA is authorized to receive taxpayer data on all modules to avoid disclosure problems before mailing a copy of Form 668-A to the POA.
Send notices and written communication issued to the taxpayer concerning a offer in compromise and/or trust fund recovery penalty assessments to the taxpayer’s representative if the taxpayer has authorized a representative to represent him/her in such matter.
Follow these procedures when a POA (Form 2848) does not cover all periods which need to be included on the POA:
Issue Letter 5427, Incomplete Power of Attorney, to the taxpayer to notify that his/her authorized representative has not received a copy of Form 668-A or other correspondence.
Inform the taxpayer that the existing POA does not cover all of the periods on a levy or other correspondence and it must cover all of the periods in order for the POA to be entitled to receive a copy of Form 668-A or other correspondence.
State that if the taxpayer wishes his/her representative to receive a copy, he/she needs to resubmit the Form 2848 covering all of the periods.
Attach Letter 5427 to the taxpayer's copy of Form 668-A or other correspondence.
Form 8821 authorizes the appointee to receive limited confidential information for the tax matters and tax periods specified on line 3.
Limit any disclosure of information to the appointee to the type of tax, the tax form number, the tax years or periods, or the specific tax matter.
Provide copies of tax information, notices, and other written communication to the appointee on an ongoing basis if item 5(a) on Form 8821 is checked.
Form 8821 does not authorize the appointee to negotiate with the IRS on behalf of the taxpayer, advocate the taxpayer’s position to IRS officials or employees, or perform the acts enumerated in section 601.504(a)(2) through (6), Conference and Practice Requirements, Statement of Procedural Rules.
Form 8821, "Line 3, Tax Matters" , provides space in column (d) for the taxpayer to enter any specific information he/she wants the IRS to provide to the appointee. Tax Matters must be properly completed to be valid. Examples of information that could be listed in column (d) include lien information, a balance due amount, a specific tax schedule, or a tax liability.
Find further information about the differences between the authority conveyed by Form 2848 and Form 8821 on the Disclosure Web page at: http://discl.web.irs.gov/poatxnfo/pwrsofatt/quickguides/7486.asp.
Form 8821 is generally input to CAF so the authorization will be available to all areas and campuses.
Form 8821 must contain critical information which can only be provided by the taxpayer. Critical information includes:
the tax year(s) or period(s)
the type of tax
the taxpayer's signature
the date signed
Review Form 8821 to ensure it contains the critical information that can only be provided by the taxpayer. The Form 8821 instructions state" Enter "Not applicable," in any of the columns that do not apply." The instructions also state "Do not use a general reference such as "All years," "All periods," or "All taxes." Any tax information authorization with a general reference will be returned."
Return any Form 8821 to the taxpayer if it is missing critical information which can only be provided by the taxpayer.
Return any Form 8821 to the taxpayer if it advocates a position that would indicate a representational role. The appointee is not entitled to respond to any type of correspondence on behalf of the taxpayer if the response advocates a position that would indicate a representational role.
A reporting agent will often have information needed to resolve an open case since they are involved in the filing of the tax returns and/or the payment of the taxes for the taxpayer.
A taxpayer may prepare and sign Form 8655, Reporting Agent Authorization, to designate a reporting agent to file certain tax returns electronically or on magnetic tape. Form 8655
Does not authorize the designated individual to represent the taxpayer before the IRS.
Does not grant authority that allows disclosure of the details of a case to the reporting agent.
Form 8655 authorizes a reporting agent to:
Sign and file certain federal employment tax returns and make payments through the Electronic Federal Tax Payment System (EFTPS) for the taxpayer.
Receive copies of notices, correspondence, and/or transcripts relating to the returns filed by the agent.
File amended returns for any returns the agent filed for the taxpayer.
Provide IRS with information to aid in penalty relief determinations related to the authority granted on Form 8655.
The Reporting Agents File (RAF) is the IRS file of taxpayers and reporting agents who file employment tax returns electronically (e-file). See IRM 21.3.9, Processing Reporting Agents File Authorizations for procedures on disclosure to a reporting agent and use of the Form 8655 . RAF is governed by the following sections of the Internal Revenue Code (IRC):
IRC § 3504
IRC § 6011
IRC § 6064
IRC § 6103
See IRM 220.127.116.11, Types of Third-Party Payer Arrangements, and IRM 18.104.22.168.3, Reporting Agent, for additional information on reporting agents.
A military POA is sufficient authorization to permit an individual to represent a deployed member of the military before the IRS.
An individual holding a military POA is often the spouse of the deployed military member. Since the military POA is broader and cannot be input into the CAF, it is acceptable for the IRS to require the non-deployed spouse (or other military POA holder) to complete a Form 2848. The spouse (or other military POA holder) should be permitted to sign the Form 2848 for the military member and as the deployed military member's authorized representative.
Attach a copy of the military POA to the completed Form 2848 before submission to the IRS.
In a bankruptcy proceeding involving the tax liabilities of a debtor-taxpayer, the IRS may disclose to the debtor-taxpayer’s attorney of record the debtor-taxpayer’s return information relevant to the resolution of those tax matters affected by the proceeding. In this situation, a Form 2848 or Form 8821 is not required.
IRM 21.3.7, Processing Third Party Authorization onto the Centralized Authorization File (CAF), provides information on third party authorizations. Paragraph (3) of IRM 22.214.171.124.3, Processing Sites (CAF Function), requires IRS employees to fax valid authorizations to the CAF Function within 24 hours of receipt.
For exceptions to sending a third party authorization to a campus, see IRM 126.96.36.199.3.1.
Record the receipt of Form 2848 or Form 8821 in the collection case history when a taxpayer submits either of these documents.
Document the case history as follows:
Record the date and the campus to which you faxed or mailed the authorization.
Annotate whether you faxed or mailed the authorization.
Add the Power of Attorney (POA) information in the Integrated Collection System (ICS) "Name and Address" application.
To determine if the authorization is valid:
Ensure all parts of the authorization are complete.
Ensure the authorization is signed by the representative and the taxpayer.
Request the taxpayer (or the taxpayer's representative or appointee) to perfect Form 2848 or Form 8821, if necessary. See IRM 21.3.7 , Processing Third Party Authorizations onto the Centralized Authorization File (CAF)
Send a properly executed, valid authorization to the appropriate CAF function by fax or mail within 24 hours of receipt unless an exception applies.
Determine the appropriate campus to direct the authorization to depending on the taxpayer’s state of residence. See IRM 188.8.131.52.3, Processing Sites (CAF Function), to determine which campus should receive the third party authorization. The campuses with CAF Units are:
Campus information is also provided in the following sources:
On the irs.gov Internet site at: http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/CAF-Unit-Addresses-Fax-Numbers-and-State-Mapping
In the "Where To File Chart" on Page 1 of Instructions for Form 2848.
In the "Where To File Chart" on Page 2 of Form 8821.
A Form 2848 and/or Form 8821 is intended for one-time use if the "specific use" box is checked.
Retain the original third party authorization in the case file if it is:
Clearly intended for one-time use
Submitted with a Freedom of Information Act (FOIA) request
Related to a Congressional inquiry
Submitted by a representative of a whistleblower (an individual who submits Form 211, Application for Award for Original Information)
For information on how to properly process a whistleblower case, see IRM 25.2.1, Receiving Information, and IRM 25.2.2, Whistleblower Awards.
Forward a third party authorization that covers a specific tax period for a specific tax return to the appropriate campus unless it falls into the one-time category.
Request a written statement from the taxpayer, the taxpayer's representative, or the taxpayer's appointee to revoke or withdraw an existing third party authorization when the taxpayer wants to revoke or the representative or the appointee wants to withdraw the authorization.
A taxpayer can revoke an existing Power of Attorney (POA) or Tax Information Authorization (TIA) without naming a new representative or authorized person by either:
Filing a copy of the POA or TIA to be revoked with each office of the IRS where the POA or TIA was filed. The taxpayer must write “REVOKE ” across the top of the first page of the Form 2848 or Form 8821 with a current signature and date below this annotation.
Filing a revocation statement with each office of the IRS where the POA or TIA was filed. The statement of revocation must indicate that the authority of the POA or appointee is revoked and must be signed by the taxpayer(s). Also, the name and address of each recognized representative or appointee whose authority is revoked must be listed.
A recognized representative/appointee may withdraw from representation by either:
Filing a copy of the POA or TIA to be revoked with each office of the IRS where the POA or TIA was filed. The representative/appointee must write “WITHDRAW” across the top of the first page of the original or copy of authorization form with a current signature and date below the annotation.
Filing a statement of withdrawal with the IRS office where the POA or TIA to be revoked is filed. The statement must be signed and dated by the representative/ appointee and must identify the name(s), TIN, address of the taxpayer(s), and the tax matter(s) from which the representative/designee is withdrawing.
Upon receipt of a written statement annotate the bottom of the statement requesting revocation or withdrawal with the date of receipt and your area office name or area office. Write across the top of the form the word “REVOKE” or “WITHDRAW.”
Review the revocation or withdrawal to ensure basic information is correct.
Send the statement of revocation or withdrawal to the appropriate CAF Unit.
The filing of a subsequent Form 2848 for the same period(s) and type(s) of tax as a previous authorization automatically replaces and revokes the previous Form 2848 unless specified otherwise by the taxpayer.
Update or delete the POA address in the ICS "Name and Address" application, as appropriate.
Where a recognized representative has unreasonably delayed or hindered an examination, collection, or investigation by failing to furnish, after repeated requests, nonprivileged information necessary to the examination, collection or investigation, the Internal Revenue Service employee conducting the examination, collection, or investigation may request permission from his/her immediate supervisor to by-pass the representative and contact the taxpayer directly for such information.
Unreasonable delay or hindrance of an investigation may constitute a violation of a provision(s) of Circular 230. However, because only the Office of Professional Responsibility (OPR) can determine whether such a violation has occurred, you should refer a suspected violation of Circular 230 to OPR.
See IRM 184.108.40.206.2, for further information on reporting suspected violations to OPR.
It may be necessary to by-pass the representative when the representative has unreasonably delayed or hindered collection by repeatedly:
failing to provide the taxpayer's records or information upon request,
failing to return telephone calls or respond to written correspondence,
canceling scheduled appointments at the last minute without timely notification, or
requesting extensions of time beyond established deadlines for submitting requested records or information.
Employees are encouraged to use appropriate enforcement tools to obtain the information necessary for collection in a timely manner without by-passing the representative even when the representative unreasonably delays or hinders collection.
Do not by-pass a representative simply because you wish to interview the taxpayer.
Keep in mind that IRC 6304 precludes the IRS from communicating with a represented taxpayer in connection with the collection of any unpaid tax unless the taxpayer or taxpayer's representative has given prior consent to that communication.
The IRS may, however, work directly with a taxpayer to resolve an issue on the taxpayers account if:
The taxpayer initiates the contact to resolve the issue on the account,
The taxpayer expresses a specific desire to resolve the issue without the involvement of the representative after the IRS employee has advised the taxpayer of the current representation, and
The taxpayer's desire to have the IRS work directly with the taxpayer instead of the representative is properly documented in the case file.
If you are employed by the IRS as an attorney, you should not work directly with a represented taxpayer without the permission of the representative; the Model Rules of Professional Conduct prohibit attorneys from discussing a matter with a represented person without the permission of the representative. A taxpayer is not represented in a docketed tax court case, however, until the taxpayer's representative has entered an appearance with the tax court.
The process for by-passing a taxpayer's representative is a two-part process. The first part is a warning and the second part is the actual by-pass. The two-part process is discussed below. If you are working directly with a taxpayer to resolve an issue in the situation described in (6)(a) through (c) above, this is not "bypassing a representative" and you do not need to follow the two-part process.
Notify your group manager (GM) when you first encounter instances of unreasonable delay or hindrance by a representative on a collection case.
Document the notification in the case history.
Consider using Letter 4016–A, Bypass Warning Letter (Power of Attorney), to advise the representative of his/her responsibilities and of the possible consequences of failing to fulfill them.
Take the following actions from that point on:
Confirm all appointments with the representative in writing.
Make all requests for documents in writing.
Document all instances of unreasonable delay or hindrance in the case file.
Document all your actions in response to the unreasonable delay or hindrance.
Prepare Letter 4016–A when you determine that it may be necessary to by pass the representative.
Complete all the required entries on Letter 4016–A.
Date Letter 4016–A with the date you prepare it.
Allow 15 to 30 days for response in the line that reads: "The currently outstanding items must be submitted by __days from the date of this letter."
Obtain your GM's approval of Letter 4016–A either in person, over the phone, or via secure email.
Mail Letter 4016–A to the representative only.
Notify the Territory Manager (TM) and the Area Return Preparer Coordinator (RPC) about the potential by-pass according to the following procedures.
See IRM 220.127.116.11.1.1
See IRM 18.104.22.168.1.2
Monitor the case for the representative's appropriate response to the by-pass warning letter within the period of time specified in the letter (generally 15 to 30 days).
Send a copy of Letter 4016–A to the Territory Manager using the following procedures:
Prepare a secure email message to the TM:
Open an email message.
Address the message to the TM.
Include your GM's name on the "Cc" line.
Type "Notification of Letter 4016-A sent to Taxpayer's Representative" in the "Subject" line of the message.
Annotate a copy of Letter 4016–A"/s/ (GM's name and title by your name)" to indicate your GM signed the letter.
Attach the annotated copy of Letter 4016–A to the email message.
Send the message to the TM via secure email.
Send a copy of Letter 4016–A to the Area RPC using the following procedures:
Access the list of the RPCs at: http://mysbse.web.irs.gov/exam/tip/rp/contacts/26507.aspx
This link opens a table entitled "Return Preparer Coordinators (RPC’s)."
The name of the RPC is listed in the column labeled "Coordinator " .
Each coordinator's name is a hyperlink — click on it to open up an email message addressed to the coordinator.
Prepare a secure email message to the RPC using the following procedures:
Click on the name of the "Coordinator."
Type "Notification of Letter 4016-A sent to Taxpayer's Representative" in the "Subject" line of the message.
Annotate the copy of Letter 4016–A"/s/ (GM's name and title by your name)" to indicate your GM signed the letter.
Attach the annotated copy of Letter 4016–A to the email message.
Send the message to the RPC via secure email.
The Letter 4016–B, Bypass Letter (Power of Attorney):
notifies the representative he/she is being by-passed, and
outlines the facts and circumstances underlying the decision to by-pass.
Prepare Letter 4016–B if the representative does not appropriately respond to Letter 4016–A within the period of time specified in the letter (generally 15 to 30 days).
Prepare an email message to send Letter 4016–B to your GM using the following procedures:
Type "Request for TM to Approve Sending Letter 4016–B to the Taxpayer's Representative" in the "Subject" line of the message.
Attach Letter 4016–B as an attachment.
Type a request to your GM into the body of the message; request your GM to:
Obtain the TM's approval of Letter 4016–B, either in person, over the phone, or via secure email.
Sign Letter 4016-B with the TM's name and title "by" his/her (GM's) name, title, and signature if the TM approves.
Return the signed Letter 4016–B to you via secure email.
Document your GM's approval and the TM's approval in the case history.
Mail Letter 4016–B to the representative.
Notify the taxpayer and the Area RPC about the by-pass.
Send a copy of Letter 4016–B to the taxpayer.
Send a copy of Letter 4016–B to the Area RPC.
The Letter 4016–B provides that the representative may respond within ten days to offer evidence of reasonable cause for the delays, however, you may contact the taxpayer directly immediately after mailing Letter 4016–B to the representative.
Contact the taxpayer directly after you send Letter 4016–B whenever you need to obtain information or advise the taxpayer of any decision you made on his/her case.
Advise the representative in writing of the time and place of all future appointments with the taxpayer.
Send copies of all correspondence with the taxpayer to the representative.
Monitor the case for a possible response from representative within the ten-day period of time specified in the letter.
The taxpayer's representative has ten days to respond and offer evidence of reasonable cause for the delays cited in Letter 4016–B.
Carefully consider the representative's response if you receive a response within ten days.
Determine if the representative had reasonable cause for the delays.
Take the following action depending upon your determination.
Continue the by-pass, or
Reverse the by-pass determination.
Advise the taxpayer and the representative if you change your determination about by-passing the representative.
Follow the normal procedures for contacting an authorized representative from that point forward:
Contact the representative whenever you need to obtain information or advise of any decision you made on the case.
Send copies of all notices or communications to the taxpayer.
Send copies of all notices or communications to the representative if requested by the taxpayer on the Form 2848.
Practitioners may be subject to discipline under Treasury Department Circular 230 (31 CFR Part 10), Regulations Governing Practice before the Internal Revenue Service, for misconduct.
Field Collection employees are required to:
Become generally familiar with practitioner responsibilities as set forth in Circular 230.
Know and understand the indicators of practitioner misconduct.
See IRM 22.214.171.124.1.
Be alert to the patterns and/or trends of misconduct.
Document the case history appropriately.
Take appropriate action, depending on the situation and the facts of the case. See IRM 126.96.36.199.2.
The Office of Professional Responsibility (OPR) is responsible for establishing, communicating and enforcing the standards of professional conduct governing tax professionals who practice before the IRS. OPR's jurisdiction includes all matters connected with a presentation to IRS. This includes all individuals compensated to prepare all or substantially all of a tax return or document for submission to the IRS, those who represent clients before the IRS and anyone who for compensation interacts with the tax administration system. OPR's jurisdiction often includes attorneys, CPAs, Enrolled Agents and others compensated to prepare documents for submission to IRS in tax controversy matters. OPR enforces Circular 230. See IRM 1.1.20 , Office of Professional Responsibility (OPR), for more information.
Circular 230, Section 10.23, Prompt Disposition of Pending Matters, states that a practitioner may not unreasonably delay the prompt disposition of any matter before the Internal Revenue Service. OPR investigates and disciplines violations of this section, particularly where a practitioner has demonstrated a pattern of delay. However, before referring a practitioner for a violation of Section 10.23, consult IRM 188.8.131.52 procedures for guidance concerning authorization to by-pass a recognized representative (POA) and instances when a represented taxpayer may be contacted directly. Three indicators of practitioner misconduct are:
Pattern of Inappropriately Attempting to Influence Service Employee
Pattern of Delay
Pattern of Significant Omissions
Clearly document all instances of practitioner misconduct in your case history.
Document all case actions leading to the request for information, documents, or substantiation.
Document the practitioner's failure to comply with your request for information or if the practitioner only provides incomplete information.
Use Form 8484, Report of Suspected Practitioner Misconduct, to make the referral to OPR.
Consult with your local Counsel office if a practitioner refuses to provide information on grounds of privilege.
The first indicator of practitioner misconduct is a pattern of inappropriately attempting to influence a Service employee regarding the disposition of a case to obtain desired results.
Practitioners may attempt to influence Service employees in a collection investigation by:
A second indicator of practitioner misconduct is a pattern of delay by the practitioner in performing one or more of the following actions during the course of a collection case. Refer to Section 10.23, Prompt disposition of pending matters, of Circular 230.
Canceling appointments at the last moment with no good cause provided
Agreeing to provide requested documentation and/or information and then refusing to do so, thereby hindering the Service’s efforts to continue its investigation
Providing incomplete information requiring repeated call backs and correspondence, causing delays
A third indicator of practitioner misconduct is a pattern of significant omissions (of assets or significant and unreasonable discounts on a number of assets on financial statements as discussed in Sections 10.21, Knowledge of client’s omission, 10.22, Diligence as to accuracy, and 10.51(a)(4), Incompetence and disreputable conduct, of Circular 230) reflecting the practitioner's failure to exercise due diligence. Failure to exercise due diligence is conduct more than a simple error but is less than willful or reckless misconduct; it is generally considered negligence. The information provided by the practitioner, or lack thereof, must be shown to be materially misrepresented, not merely a simple error.
The patterns of omissions or material misrepresentations could include, but are not limited, to the following:
Assets are omitted or undervalued
Income is understated or expenses are overstated
Collection Information Statement(s) (CIS) reflect(s) a large number of claimed dependents who would not be allowable as an exemption on the taxpayer's income tax return
CIS reflects similar dollar amounts in both checking and savings accounts (e.g., $100 or $1000) and the taxpayer has not provided bank statements to validate the balances
CIS reflects no available credit, including no credit cards which is not validated by a comparison with the taxpayer's credit bureau reports which shows available credit
CIS shows similar listings for monthly income and expenses and the taxpayer has not validated the income or expenses as being legitimate
Clearly document all instances of suspected practitioner misconduct in your case history. Include all of the information about the practitioner's failure to exercise due diligence, as well as an explanation of why you believe that the practitioner's behavior falls below the expected standards.
Maintain a carefully detailed chronology in the collection case history throughout the course of the collection case when you suspect practitioner misconduct.
Document any abusive behavior or any threat(s).
Write a memo immediately after a practitioner misconduct event; include everything that was stated and the names of any witnesses.
Preserve any threat message(s) left on your voice mail.
Make a referral to report suspected practitioner misconduct when you:
Detect these patterns during a collection investigation.
Receive a report of misconduct from any person other than an officer or employee of the IRS.
Become aware that a suspended or disbarred practitioner is practicing or attempting to practice before the IRS.
Contact Associate Chief Counsel, Office of General Legal Services (GLS), Ethics and General Government Law Branch when you need to seek legal advice about a practitioner committing a possible post-employment violation.
When reporting misconduct or seeking legal advice from the Office of Chief Counsel:
Provide as much relevant factual background as possible to fully communicate the reasons why you suspect the practitioner of misconduct.
Ensure that you include all available documentary evidence in support of your allegation(s).
When situations exist and are fully documented that a duly recognized representative persistently shows a pattern of misconduct, either with respect to a particular client or several clients, employees should make a referral. Depending on the type of referral, you may need to contact:
Chief Counsel, Office of General Legal Services.
Prior to contacting any of these offices, you will need to contact your immediate manager.
IRS employees have an obligation to report suspected practitioner misconduct to OPR under section 10.53(a), Receipt of information, of Circular 230.
IRS employees may contact the Office of Professional Responsibility at the phone number shown on the OPR-At-A-Glance web page during the course of working a case to discuss any perceived instances of practitioner misconduct or for questions about Circular 230 issues.
Prior to making the referral use the search features provided by OPR on its website at http://nhq.no.irs.gov/OPR/Practice/Disciplined%20Practitioners.asp to determine whether a practitioner has been suspended or disbarred from practice before the IRS. OPR's website also provides additional resources for the verification of practitioner credentials, links to the state boards of accountancy and state bar associations, and additional information about reporting suspected practitioner misconduct. If a state does not make information available electronically, you may have to contact the State Bar Association or the State Board of Accountancy directly.
An alternate method to check the status of a taxpayer's representative is by using the national asset locator tool to search for current CPA license information, state bar membership information, etc. Other search sites, such as CPAVerify, may provide similar information. Not all states provide online information so you may need to make a phone call to the appropriate state.
Current CPA license information is available at: http://www.aicpa.org/yellow/ypsboa.htm, however, membership in the American Institute of CPAs (AICPA) trade organization is voluntary. Thus, not all licensed CPAs are members. Not all states make their license information available electronically. Therefore, in some cases, you may have to contact the State Board of Accountancy directly.
Current bar membership information is available through each state’s bar association. If a state does not make information available electronically, you may have to contact the State Bar Association directly.
Check the status of an enrolled agent with the IRS Enrolled Practitioner Program (EPP) by calling the IRS Enrolled Practitioner Hotline at 1-313-234-1280 or by sending a secure email to EPP@irs.gov or *CC DCC epp. In addition, a search option is available on the Return Preparer Office (RPO) website. Select the Enrolled Agent’s link at the bottom of the page and spreadsheet will appear with EA information
Complete Form 8484, Report of Suspected Practitioner Misconduct, to report suspected practitioner misconduct and to refer the practitioner to OPR for appropriate disciplinary action by following the specific "Instructions to Form 8484" (printed on the reverse side of the form).
Submission of a referral for misconduct may result in an evidentiary hearing before an administrative law judge. The OPR may request an IRS employee having information supporting the allegations of misconduct to appear as a witness at a hearing or to submit an affidavit under penalties of perjury. Misconduct referrals generally will be disclosed to practitioners under the Freedom of Information Act.
Ensure you include all the documentary evidence in support of your allegation(s).
Consider whether you should also make a referral to the Treasury Inspector General for Tax Administration (TIGTA) for potential criminal sanctions.
See IRM 184.108.40.206.2.
Clearly document any decision to refer a practitioner to TIGTA for potential criminal sanctions on any OPR referral. Be sure to include all the documentary evidence in support of your allegation(s).
Scan and save any supporting document(s), as applicable, and save the scanned document(s) as a PDF file(s).
Compose an email message to your GM as follows:
Entitle the message "Report of Suspected Practitioner Misconduct"
Include a request in the body of the message to your GM to signify his/her approval by forwarding the message to OPR.
Attach Form 8484 and any other supporting documents to the email message.
Send the message and attachment(s) to your GM via secure email.
Follow one of the two methods to transmit Form 8484 and/or any supporting document(s).
Fax to the phone number shown on the OPR-At-A-Glance web page.
Office of Professional Responsibility
1111 Constitution Avenue NW
SE:OPR, Room 7238
Attention: Misconduct Reports Desk
Washington, DC 20224
In all but rare situations, OPR investigations begin at the conclusion of enforcement efforts and do not influence ongoing IRS compliance activity.
Refer a post-employment violation under section 207 of title 18 of the United States Code to GLS.
See IRM Exhibit 1.25.1-1 for detailed information on how to make a referral.
Practitioner misconduct may be an indicator of potential fraud, so it may be appropriate to discuss practitioner misconduct with the Fraud Technical Advisor.
Review IRM 25.1.8, Fraud Handbook - Collection Field Function, for procedures to use when developing a fraud referral.
Discuss possible practitioner misconduct with the Fraud Technical Advisor for assistance on whether to refer a practitioner to TIGTA for investigation.
Make a report to refer a practitioner for misconduct directly to TIGTA by one of the methods displayed in the following table:
Reporting to TIGTA
Access TIGTA's website at http://www.treas.gov/tigta/contact_report.shtml
Complete the "ONLINE FORM."
Send a secure email message to TIGTA at TIGTA Hotline Complaints Unit
Contact the local TIGTA office, or
Call the TIGTA National Hotline at 1-800-366-4484.
Consult with Counsel under the following circumstances:
Consult with Counsel to determine if you should make a referral to the Treasury Inspector General for Tax Administration (TIGTA) for investigation of practitioner misconduct as potential fraud.
Consult with the office of the Associate Chief Counsel Office of General Legal Services, Ethics and General Government Law Branch to determine if you should make a referral to the Treasury Inspector General for Tax Administration (TIGTA) for investigation about a post-employment violation under section 207 of title 18 of the United States Code.
Refer the matter to TIGTA for investigation if Counsel so advises.
Whether or not you end up referring the matter to TIGTA for potential criminal sanctions, you must report suspected practitioner misconduct to the OPR as discussed above.
Ensure that you include all the documentary evidence in support of your allegation(s).
A post-employment violation under section 207 of title 18 of the United States Code is not reported to OPR. The Ethics and General Government Law Branch in the Office of the Associate Chief Counsel (General Legal Services) (EGG GLS) is responsible for rendering a legal advisory opinion on whether a former employee is violating or has violated the post-employment laws.
A post-employment violation may occur when a former IRS employee works on a specific matter in the private sector that he/she worked on while employed by the IRS.
A revenue officer (RO) was collecting delinquent taxes and/or returns from a business or an individual and then quit or retired from the IRS.
That RO cannot represent that same business or individual on that same tax return or collection matter.
A revenue agent (RA) was auditing a business or an individual and then quit or retired from the IRS.
That RA cannot represent that same business or individual on the same or related tax return as he worked on while employed by the IRS.
A Territory Manager had official responsibility over a manager and revenue agent who completed the audit of a business three years ago. The Territory Manager retired from the IRS 13 months ago. The Territory Manager did not personally or substantially participate in the audit. The Territory Manager is not barred from representing the business in that same or related matter because the matter was not pending under his official responsibility during his last year of service with the Government. If the matter was pending under his official responsibility during his last year of Government service, the Territory Manager would not be able to represent the business.
Access EthicsLink at: http://counsel.web.irs.gov/EthicsLink/leaving_Goverment/ if you need further information on the post-employment laws.
Discuss the potential post-employment violation with your group manager when you have information to suggest that a former IRS employee is violating or has violated the post-employment laws.
Do not pursue the issue if your GM does not agree.
Follow the procedures below if your GM agrees.
Discuss a potential post-employment violation with EGG GLS by telephone if you need further guidance to understand the statutory prohibitions on a former government employee to determine their impact on your case.
Take the following action once you have determined you have a potential post-employment violation and your GM has agreed that you can pursue the issue with CC:GLS:EGG.
Submit the facts in writing to CC:GLS:EGG:
Prepare a memorandum to the Chief, EGG GLS describing the facts of the violation. Address the memorandum to: Chief, Ethics and General Government Law Branch (GLS).
Prepare an email message to your GM.
Entitle the message "Need a legal advisory opinion on whether a former employee is violating or has violated the post-employment laws."
Include a request for your GM in the body of the message — to read, review, and forward the message.
Attach the memorandum as an attachment to the message.
Send the message to your GM via secure email.
In the memo to GLS, provide relevant information which will help CC:GLS:EGG determine if a post-employment violation may have occurred, such as
the former IRS office of the practitioner.
extent of prior involvement in the matter.
facts about the case.
issues such as how the case is similar to or how the case is different from other such cases, etc.
GLS may request you to advise the former IRS employee to cease work on the matter pending completion of their review of the matter.
GLS will do the following if they believe that a violation has occurred:
Issue an advisory opinion that a violation is or has occurred.
Ask you to refer the matter to TIGTA for investigation. See IRM 220.127.116.11.2.