By Robin L. Greenhouse, Esq., and Gale E. Chan, Esq.
McDermott Will & Emery, Washington, DC
On January 18, 2013, the District Court for the District of Columbia (District Court) issued a surprising decision in Loving v. Internal Revenue Service, No. 12-385 (JEB) (D.D.C. 1/18/13), holding that the Internal Revenue Service (IRS) lacked the authority to issue and enforce the final Circular 230 tax return preparer regulations that were issued in 2011 (Regulations). The District Court also permanently enjoined the IRS from enforcing the Regulations.
As part of the IRS's initiative to increase oversight of the tax return preparer industry by creating uniform and high ethical standards of conduct, the IRS created a new category of preparers, "registered tax return preparer," to be subject to the rules of Circular 230. Attorneys, certified public accountants, enrolled agents and enrolled actuaries were already subject to IRS regulation under Circular 230, and thus, were not affected by the issuance of the Regulations.
In June 2011, the IRS and the U.S. Department of the Treasury (Treasury) issued the Regulations relating to registered tax return preparers and practice before the IRS. T.D. 9527 (6/3/11). Under these rules, registered tax return preparers have a limited right to practice before the IRS. A registered tax return preparer can prepare and sign tax returns, claims for refunds and other documents for submission to the IRS. A registered tax return preparer who signs the return may represent taxpayers before revenue agents and IRS customer service representatives (or similar officers or employees of the IRS) during an examination, but the registered tax return preparer cannot represent the taxpayer before IRS appeals officers, revenue officers, counsel or similar officers or employees of the IRS. In addition, a registered tax return preparer can only advise a taxpayer as necessary to prepare a tax return, claim for refund or other document intended to be submitted to the IRS.
The Regulations also impose additional examination and continuing education requirements on registered tax return preparers in addition to obtaining a preparer tax identification number (PTIN). Under the rules, to become a "registered tax return preparer," an individual must be 18 years old, possess a current and valid PTIN, pass a one-time competency examination, and pass a federal tax compliance check and a background check. The Regulations require a registered tax return preparer to renew his or her PTIN annually and to pay the requisite user fee. To renew a PTIN, a registered tax return preparer must also complete a minimum of 15 hours of continuing education credit each year that includes two hours of ethics or professional conduct, three hours of federal tax law updates and 10 hours of federal tax law topics.
Loving v. Internal Revenue Service
In Loving, three individual paid tax return preparers (Plaintiffs) filed suit against the IRS, the Commissioner of Internal Revenue and the United States (collectively, Government) seeking declaratory relief, arguing that tax return preparers whose only "appearance" before the IRS is the preparation of tax returns cannot be regulated by the IRS, and injunctive relief, requesting the court to permanently enjoin the IRS from enforcing the Regulations. In filed declarations, two of the Plaintiffs indicated that they would likely close their tax businesses if they were forced to comply with the Regulations, and the third Plaintiff, who serves low-income clients, indicated that she would have to increase her prices if forced to comply with the Regulations, likely resulting in a loss of customers. The Plaintiffs and the Government each filed separate motions for summary judgment.
At issue in the case was the IRS's claim that it can regulate individuals who practice before it, including tax return preparers. The IRS relied on an 1884 statute, 31 USC §330, which provides the Treasury with the authority to regulate the people who practice before it. The statute currently provides that the Treasury may "regulate the practice of representatives of persons before the Department of the Treasury." 31 USC §330(a)(1) (emphasis added). The statute further requires that a representative demonstrate certain characteristics prior to being admitted as a representative to practice, including "competency to advise and assist persons in presenting their cases." 31 USC §330(a)(2)(D) (emphasis added). The statute also gives the Treasury authority to suspend or disbar a representative from practice before the Treasury in certain circumstances, as well as to impose a monetary penalty. 31 USC §330(b).
The District Court's Application of Chevron
The District Court applied the framework of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and concluded that the text and context of 31 USC §330 unambiguously foreclosed the IRS's interpretation of the statute. Chevron applies a two-step inquiry to determine whether a statute is ambiguous. The first step asks whether the intent of Congress is clear in the statute-i.e., has Congress "directly spoken to the precise question at issue." Chevron, 467 U.S. at 842. If a court determines that the intent of Congress is clear, under the Chevron framework, that is the end and the court "must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. However, if the court determines that the statute is silent or ambiguous, the court must proceed to step two of Chevron and ask whether the agency's interpretation "is based on a permissible construction of the statute." Id. at 843. An agency's construction under step two is permissible "unless it is arbitrary or capricious in substance, or manifestly contrary to the statute." Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 711 (2011) (citation omitted).
In Loving, the District Court concluded that 31 USC §330 was unambiguous as to whether tax return preparers are "representatives" who "practice" before the IRS for three reasons. First, the District Court stated that 31 USC §330(a)(2)(D) defines the phrase "practice of representatives" in a way that does not cover tax return preparers. As noted above, 31 USC §330(a)(2)(D) requires a representative to demonstrate that he or she is competent to advise and assist taxpayers in presenting their "cases." The District Court stated that the statute thus equates "practice" with advising and assisting with the presentation of a case, which the filing of a tax return is not. Thus, the District Court concluded that the definition in 31 USC §330(a)(2)(D) "makes sense only in connection with those who assist taxpayers in the examination and appeals stages of the process."
Second, the District Court stated that the IRS's interpretation of 31 USC §330 would undercut various statutory penalties in the Internal Revenue Code (Code) specifically applicable to tax return preparers. The District Court noted that if 31 USC §330(b) is interpreted as authorizing the IRS to penalize tax return preparers under the statute, the statutory penalty provisions in the Code specific to tax return preparers would be displaced, thereby allowing the IRS to penalize tax return preparers more broadly than is permissible under the Code. Thus, the District Court stated that the specific penalty provisions applicable to tax return preparers in the Code should not be "relegated to oblivion" and trumped by the general penalty provision of 31 USC §330(b).
The District Court also stated that 31 USC §330(b) does not authorize penalties on tax return preparers because §6103(k)(5) of the Code, which provides that the IRS may disclose certain penalties to state and local agencies that license, register or regulate tax return preparers, does not identify 31 USC §330(b) as one of the reportable statutory penalty provisions.
Finally, the District Court stated that if the IRS's interpretation of 31 USC §330 is accepted, §7407 of the Code would be duplicative. Section 7407 provides the IRS with the right to seek an injunction against a tax return preparer to enjoin the preparer from further preparing returns if the preparer engages in specified unlawful conduct. This right is similar to the authority under 31 USC §330(b) to penalize if the IRS's interpretation of 31 USC §330 is accepted. Under the IRS's interpretation of 31 USC §330, the IRS could disbar a representative from practice before the IRS if a tax return preparer engages in the conduct described in 31 USC §330(b) (incompetence, being disreputable, violating regulations and fraud). Thus, the District Court noted that disbarment under 31 USC §330(b) is wholly within the IRS's control and would be an easier path to penalize a tax return preparer than offered by §7407. The District Court stated that under the IRS's interpretation, the IRS likely would never utilize the remedies available under §7407, thereby rendering the statute pointless.
The District Court granted the Plaintiffs' motion for summary judgment, holding that the IRS lacked statutory authority to issue and enforce the Regulations against "registered tax return preparers," and permanently enjoined the IRS from enforcing the Regulations.
On January 23, 2013, the Government filed a motion to suspend the District Court's injunction pending appeal of the decision. In the meantime, in accordance with the District Court's order, the IRS issued a statement stating that tax return preparers are not currently required to register with IRS or complete the competency examination or continuing education requirements. Moreover, in the wake of Loving, it appears that the IRS has suspended its online PTIN registration system, even though the regulations requiring preparers to have a PTIN were not at issue in the case. Thus, the District Court's decision has already had a great impact on the hundreds of thousands of tax return preparers ensnared by the Regulations and the clients they serve. More uncertainty could arise if the court's injunction is lifted and subsequently reinstated.
For more information, in the Tax Management Portfolios, see Cogdell, 620 T.M., Practice Before the IRS; Attorney's Fees in Tax Proceedings, and in Tax Practice Series, see ¶3820, Tax Returns and Information Returns.
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