Clients have been confused by e-mails from their accountants to set a lunch meeting that include a warning, often highlighted in bold font and upper case letters, that the invitation could not and should not be considered tax advice and could not be relied upon to avoid penalties.
This ritualistic inanity began about five years ago, when the Internal Revenue Service issued new final regulations under Circular 230 relating to "written opinions."
Since some e-mails to clients - and for these purposes an e-mail is considered writing -- would include tax opinion or advice, they would need a "written reliance opinion" that was required to follow certain prescriptions. The only way to avoid this was if the e-mail contained a legended disclaimer as to the reliability of the tax advice.
The bad news: Such e-mails will continue. The good news: not much longer. The service has issued new proposed regulations that would totally revamp the area of written advice and eliminate the need for these disclaimers. But practitioners must keep in mind the difference between proposed regulations and final regulations. Some have been led to believe that they can remove the disclaimer from all of their e-mail traffic now, which is untrue. Until these regulations finalize, the old rules remain in effect, but it is believed that this will take place in the near future, so stay tuned.
FIVE REQUIREMENTS
While the disclaimer has the most widespread impact on practitioners and their firms, the proposed regulations would also change written tax advice. Currently, tax opinions covered by the regulations were determined by a complex definition that broke down further categories of opinion, and then prescribed that certain rules be followed in rendering that opinion.
Under the proposed regulations, a practitioner's written tax opinions would need to meet the following five requirements:
1. Base the written advice on reasonable factual and legal assumptions (including assumptions as to future events);
2. Consider relevant facts that the practitioner knows or should know;
3. Use reasonable efforts to identify facts relevant to written advice on each federal tax matter;
4. Not rely on representations, statements, findings or agreements (including projections, financial forecasts, or appraisals) of the taxpayer or any other person if reliance on them would be unreasonable; and,
5. Not, in evaluating a federal tax matter, take into account the possibility that a tax return will not be audited or that a matter will not be raised on audit.
Reliance on representations, statements, findings or agreements is unreasonable if the practitioner knows or should know that one or more representations or assumptions on which any representation is based are incorrect or incomplete.
A practitioner may only rely on the advice of another practitioner if the advice is in good faith. Reliance is not reasonable when the practitioner knows or should know that:
• The opinion of the other practitioner should not be relied on;
• The other practitioner is not competent or lacks the necessary qualifications to provide the advice; or,
• The other practitioner has a conflict of interest.
In determining what the tax pro should know in any case, the IRS will apply a reasonableness standard that takes into account all the facts and circumstances, including the scope of the engagement and the type and specificity of the advice sought by the client.
While many of these rules would seem to ease the burden on a practitioner, the proposed regs will increase the responsibility of those vested with authority over a firm's practice. Such person must take reasonable steps that the firm has adequate procedures in effect for all members, associates and employees for purposes of complying with the Circular 230 provisions relating to the giving of advice and the preparation of income tax returns, claims for refund, or submission of other documents to the service.
So those firms that have not already placed such procedures in place should start to develop them now so they can be implemented on or before the date that this new directive is finalized.
Jack Surgent, CPA, is chief executive officer of continuing education provider
