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The IRS Office of Professional Responsibility
The Internal Revenue Service has recently ramped up compliance and enforcement efforts with budget increases and enhanced resources. A lesser-known component of this revitalized enforcement is the IRS Office of Professional Responsibility (OPR), which is charged with regulating professionals ' mostly lawyers and accountants ' who practice before the IRS. OPR enforces ethical rules that govern practice before the Service, commonly known as “Circular 230,” and may sanction practitioners who violate those rules. Because OPR matters can interact with the criminal process in many respects, conscientious white- collar practitioners and corporate tax counsel should familiarize themselves with OPR and its power over tax professionals.
OPR Jurisdiction and Process
Circular 230 applies to persons practicing before the IRS, ie, accountants and lawyers who appear on an IRS power of attorney, entitling them to represent clients in audits, collection matters or criminal inquiries, regardless of whether such practitioners are in a private firm or a corporation's tax department. Circular 230 includes requirements that practitioners comply with all laws with regard to their own tax filings; avoid improper conflicts of interest; act with “due diligence” in the rendering of tax advice; cooperate to the extent legally required in any IRS examination of a client; and act with integrity and honesty in dealing with the IRS. Thus, for example, a violation of Circular 230 may occur where:
- A corporate tax official fails to file a personal tax return, files a materially false return, or knowingly assists another in the filing of a false return;
- An accountant makes misstatements about the availability of information to an IRS agent during an audit; or
- A tax lawyer knowingly markets a tax shelter product contrary to law or regulation.
A violation of Circular 230 can lead to potential sanctions, including reprimand, suspension from practice before the IRS for a period of time, or permanent disbarment from such practice. (Disbarred practitioners may apply for reinstatement after 5 years.) The new tax bill, signed into law in October 2004, provides OPR with additional authority ' to seek injunctive relief, to levy monetary sanctions and to impose its practice-related sanctions against entities, such as accounting or law firms. Additionally, OPR may refer matters to state licensing authorities, thereby placing at risk a professional's right to practice altogether.
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