(Circular 230) Regulations Governing Practice before the Internal Revenue Service and IRM 1.2.52.19 , Delegation Order 25-18 (Rev. 2) define practitioners who may represent a taxpayer and practice before the Internal Revenue Service to include any of the following individuals:

In general, individuals cannot practice before the Internal Revenue Service if they are not eligible; or they have lost the privilege, as a result of certain actions. If an individual is ineligible to practice, a POA designation will not be recognized by the Internal Revenue Service. See IRM 4.11.55.2.1.2, for more information on a POA not authorized to practice before the Internal Revenue Service.

Corporations, associations, partnerships, and any other non-individuals are not eligible to practice before the Internal Revenue Service.

If a taxpayer designates someone who is not authorized to practice before the Internal Revenue Service as a representative on the Form 2848, Power of Attorney and Declaration of Representative, and the designated individual did not prepare the taxpayer's tax return for the tax year or period at issue, they may not represent the taxpayer before the Internal Revenue Service with a Form 2848. See IRM 4.11.55.2.4, for more information on the proper form to use.

Although the Internal Revenue Service generally may rely, in good faith, on Part II, Declaration of Representative, of Form 2848 concerning the eligibility of an individual to practice before the Internal Revenue Service, there may be circumstances where an individual completes Part II of Form 2848 indicating they are an attorney, CPA, enrolled agent, etc., when they never had such status or were no longer entitled to claim such status.

The RPO provides search features on its website for active enrolled agents at https://www.irs.gov/tax-professionals/enrolled-agents/active-enrolled-agents-and-the-freedom-of-information-act. The RPO also provides a searchable Directory of Federal Tax Return Preparers with Credential and Select Qualifications, such as Records of Completion for the Annual Filing Season Program at https://irs.treasury.gov/rpo/rpo.jsf. The OPR provides search features on its website to indicate whether a practitioner has been suspended or disbarred from practice before the Internal Revenue Service or enjoined from representing taxpayers at https://www.irs.gov/tax-professionals/search-for-disciplined-tax-professionals.

If authorized on a POA, CPAs, attorneys, enrolled agents, enrolled actuaries, and enrolled retirement plan administrators, and students in LITC or STCP are entitled to:

A taxpayer's rights include the right to have the taxpayer's representative present whenever the taxpayer is interviewed, interrogated, or requested to furnish information to the Internal Revenue Service. This right must be respected by Internal Revenue Service personnel at all times. The taxpayer may waive this right. The examiner must document in the workpapers that this right was waived.

If a representative has unreasonably delayed or hindered an examination, collection or investigation by failing to furnish non-privileged information after repeated requests, the examiner may request their immediate supervisor's permission to contact the taxpayer directly, to request the non-privileged information. See IRM 4.11.55.4, for more information on by-pass of a representative.

A practitioner must promptly submit records or information requested by employees of the Internal Revenue Service unless the practitioner believes in good faith and on reasonable grounds that the information requested is privileged. See IRM 4.11.55.3, for more information on privileged communications.

A practitioner who knows his or her client has not complied with the revenue laws or has made an error or omission in any return, document, affidavit, or other required paper, has the responsibility to advise the client promptly of the noncompliance, error, or omission.

The practitioner must advise the client of any consequences as provided under the IRC and regulations of such noncompliance, error, or omission.

A practitioner must exercise due diligence when performing the following duties:

A practitioner must not unreasonably delay the prompt disposition of any matter before the Internal Revenue Service.

A practitioner must not knowingly, directly or indirectly, do the following:

A practitioner who is a notary public and is employed as counsel, attorney, or agent in a matter before the Internal Revenue Service, or has a material interest in the matter, cannot engage in any notary activities related to the matter.

Practitioners must not endorse or otherwise negotiate (cash) any refund check issued to the taxpayer, including directing or accepting payment, electronically or otherwise, into an account owned or controlled by the practitioner or any firm or other entity with which the practitioner is associated.

Any practitioner may be disbarred or suspended from practice before the Internal Revenue Service for incompetence or disreputable conduct. Circular 230 (31 CFR 10.51) provides examples of incompetence and disreputable conduct of a representative.

If there are suspected violations of the rules governing practice before the Internal Revenue Service, a referral to the OPR must be considered. See IRM 4.11.55.5, for more information on referrals.

This subsection describes POA requirements under special situations, including special language that may be required to be included in the Form 2848, Power of Attorney and Declaration of Representative.

A POA is not always required when working with a third party.

If a joint return is involved, each spouse must file a separate Form 2848, Power of Attorney and Declaration of Representative, if they both want to be represented, even if the representative is the same person. If only one spouse wants to be represented in the matter, that spouse files a Form 2848. Each spouse signs only their respective Form 2848.

The TMP of a TEFRA partnership may sign the POA. The TMP must be carefully determined per 26 CFR 301.6231(a)(7)-1, Designation or Selection of Tax Matters Partners. A general partner may also sign a POA, but the POA will only give the designated representative limited powers.

The POA must be signed by a general partner duly authorized to act for the partnership. See Form 2848, Power of Attorney and Declaration of Representative instructions, Pub 216, Conference and Practice Requirements, and 26 CFR 601.503(c)(5).

The POA is to be signed by an officer of the corporation having authority to bind the corporation. See Form 2848, Power of Attorney and Declaration of Representative, instructions and 26 CFR 601.504, Requirements for filing power of attorney, of the Conference and Practice Requirements Statement of Procedural Rules, which are reprinted in Pub 216, Conference and Practice Requirements, and 26 CFR 601.503(c)(3).

A Form 2848, Power of Attorney and Declaration of Representative is used by a taxpayer to appoint a representative to perform specified acts on behalf of the taxpayer. Instructions for Form 2848, Power of Attorney and Declaration of Representative, found at http://publish.no.irs.gov/cat12.cgi?request=CAT1&catnum=11981 provide line by line instructions for completing the Form 2848. Also, Form 2848 is used to appoint an unenrolled return preparer to represent a taxpayer in limited circumstances. Therefore, examiners must ensure that the unenrolled return preparer identified on Part II of Form 2848 with an "h" designation prepared and signed the return.

In order to process, the Form 2848 must contain:

The representative must complete Part II, "Declaration of Representative" of Form 2848.

Form 2848 is valid for only the types of tax, tax forms, tax periods, and tax matters that the taxpayer specifies.

Only a specific designated individual or individuals may represent the taxpayer. A firm or corporation cannot be designated a representative.

In order for the representative to receive refund checks, sign returns, or appoint other representatives, Form 2848 must specifically state this authority in Line 5a, Additional acts authorized.

Form 2848 allows taxpayers to limit powers of the representative. The taxpayer may cross out any authorities that they do not want to grant to the representative on the form. A taxpayer may also list on Line 5b of Form 2848 other specific deletions of act that a representative is otherwise authorized to perform.

All representatives must use the latest revision of the applicable form. If a representative uses a prior version, it must contain the same information as the current form.

A representative must file a separate Form 2848 for each taxpayer.

Form 8821, Tax Information Authorization, allows taxpayers to authorize individuals, corporations, firms, organizations, or partnerships to inspect and/or receive confidential tax information.

Form 8821 is used only to authorize an individual to receive and inspect confidential tax return information of the taxpayer. It cannot be used to appoint a representative. If Form 8821 is for a joint return, only one spouse's signature is necessary.

Form 8821 is valid only for the types of tax, tax forms, tax periods, and tax matters the taxpayer specifies on the form.

In order to process, Form 8821:

If any of the above items are missing, the Form 8821 is invalid. The taxpayer must make any additions/corrections to the Form 8821. This may be accomplished through face-to-face contact or correspondence with the taxpayer.

The Internal Revenue Service will accept a non-IRS POA document. In order for a non-IRS POA to be entered on the CAF system, it must be attached to a completed Form 2848, Power of Attorney and Declaration of Representative. The taxpayer’s signature is not required on the Form 2848; however, the representative must sign the Declaration of Representative, (see Part II of Form 2848). If a non-IRS POA document is used, it must contain the following information:

A signed and dated statement made by the representative must also be attached to the non-IRS POA document. The statement must contain the same declarations contained in Part II of Form 2848.

Internal Revenue Service will accept a non-IRS POA that does not include all information required by regulation if the attorney in fact completes and attaches a Form 2848 that includes the missing information and a statement, signed under penalty of perjury, that the original POA is valid under the laws of the governing jurisdiction.

See Pub 947, Practice Before the IRS and Power of Attorney and Pub 216, Conference and Practice Requirements, for additional information.

A complete Form 2848, Power of Attorney and Declaration of Representative, or Form 8821, Tax Information Authorization, with accurate information must be provided to the Internal Revenue Service before the representative or party designated to receive tax information is recognized in the respective capacities and before the forms are submitted to the CAF.

When a POA form is received, it is the Internal Revenue Service employee’s responsibility to check the document for accuracy and completeness before submitting to the CAF unit for processing. See IRM 21.3.7.5.1, Essential Elements, for Form 2848, Power of Attorney and Declaration of Representative and Form 8821, Tax Information Authorization.

When a determination is made that the POA or TIA is valid and can be processed by the CAF, the employee must take the following actions:

Document the case activity record (Form 9984, Examining Officer's Activity Record, or equivalent case history) with the receipt and processing of the POA or TIA.

Add the POA information to RGS or similar software being utilized to conduct the audit. For RGS refer to IRM 4.10.15.2.2, Paragraph 3, Contacts.

The examiner must keep the original POA or TIA in the case file attached to the back of the first page of the return. If the POA or TIA covers more than one year, copies must be made and attached to all returns that the POA or TIA covers. A copy of subsequent POAs must be stapled to the top of the prior POAs in the same manner.

The receipt, review, and forwarding of the POA or TIA to the CAF Unit must be completed as soon as possible or within 24 hours of the receipt date. See IRM 21.3.7.1.3(5), Audience-Processing Sites (CAF Function).

Examiners will check IDRS for posting of a Transaction Code (TC) 960 to make sure the Form 2848, Power of Attorney and Declaration of Representative, was accepted by the CAF unit. Examiners should allow several weeks for processing of the TC 960 to post to IDRS.

POAs filed for specific issues are NOT to be detached from the related document that is sent to the CAF function in the Campus.

Examples of specific issues are provided in IRM 21.3.7.8.12, Specific Use Authorizations.

Taxpayers have the right to representation at any time during the examination process. See IRM 4.10.3.3.7.2, Request for Representation - Suspension of Interview, and IRM 4.10.2.9.3.1, Taxpayers Who Delay, for more details.

The examiner must have a complete understanding of the information contained in the documents governing who may practice before the Internal Revenue Service. These documents outline the standards of conduct a representative must uphold. Understanding these standards will help set clear, objective expectations for the pace and conduct of the examination.

Examiners need to be firm and resourceful when communicating with taxpayers and representatives, when appropriate. There are a variety of tools available to the examiner to address examination delays.

There is no clear-cut solution to the problem, but examiners must take action to address procrastination on the part of the representative/taxpayer. Typically, a variety of actions need to be taken when faced with delays. The examiner's ability to recognize the problem and properly document the case file is essential.

In addition, receiving support from management is very important.

Under IRC 7602(a), Authority to Summon, etc., the examiner is authorized to "examine any books, papers, records, or other data which may be relevant or material to such inquiry."

If necessary, the examiner must remind the taxpayer and/or representative that the Internal Revenue Service has the right by law to examine the books and records. Also, if necessary, the examiner must remind the representative of duties and obligations under Circular 230.

An accountant's or other return preparer's workpapers used to prepare the return (including workpapers reconciling the books to the return and adjusting entries) are included under IRC 7602(a), Authority to Summon, etc.

The confidentiality privilege does NOT apply to the following:

The taxpayer must assert the confidentiality privilege; it is not automatic.

The taxpayer can assert the confidentiality privilege in any "non-criminal" tax matter before the Internal Revenue Service and any "non-criminal" tax proceeding in federal court with respect to such matter.

A case is a "non-criminal tax matter before the Internal Revenue Service" until the matter is referred to the Criminal Investigation Division for the assignment of a special agent to the matter. Once the matter ceases to be a non-criminal tax matter, the taxpayer may no longer assert the statutory privilege created under IRC 7525, Confidentiality Privileges Relating to Taxpayer Communications. Thus, the Internal Revenue Service may obtain the information previously withheld.

If the taxpayer asserts the confidentiality privilege, the examiner must do the following:

Examiners are to exercise discretion in making referrals of specific cases to the Director, Office of Professional Responsibility.

In matters involving non-willful conduct in tax return preparation subject to a penalty, a referral may only be made when it can be established that the preparer has a pattern of failing to meet the required due-diligence standards of Circular 230.

An isolated instance in which a penalty may apply will not, in and of itself, require a referral unless willful conduct is involved. Accordingly, the imposition of penalties under IRC 6694(a), Understatement Due to Unreasonable Positions, and IRC 6695(a), Failure to Furnish Copy to Taxpayer through IRC 6695(g), Failure to be Diligent in Determining Eligibility for Certain Tax Benefits may not automatically generate a referral to the Director, Office of Professional Responsibility.

Once it has been determined that a referral is necessary or appropriate, a referral package to OPR must be prepared and closed separately from the related case. Include in the referral package:

Form 9984, Examining Officer's Activity Record, for the related tax case must note the referral was prepared and forwarded to the area return preparer coordinator.

A comment must be made in the client examination workpapers' penalty section as to consideration of a referral to the OPR.

Examiners will send referrals to OPR utilizing Form 8484, Suspected Practitioner Misconduct Report for the Office of Professional Responsibility. The referral package must be routed through the area return preparer coordinator.