ETHICAL STANDARDS FOR TAX PRACTITIONERS

Transcription

1 ETHICAL STANDARDS FOR TAX PRACTITIONERS 105 Glenda C. Brock ETHICAL STANDARDS FOR TAX PRACTITIONERS Department of Accounting To be ethical, according to Webster s dictionary, one has to conform to the standards of conduct of a given profession or group. Therefore, the tax professional must comply with the legal requirements, as well as the rules of the AICPA ("American Institute of Certified Public Accountants"), to be ethical. The legal requirements, along with penalties for noncompliance, are found in the Internal Revenue Code of 1986 and Treasury Department Circular 230. The purpose of this paper is to present an outline of the legal and suggested requirements for tax practitioners. Since the law is often nebulous, the judgement of the tax professional, the judicial system, or the Internal Revenue Service (IRS) may be the guide to ethical behavior. Having and practicing ethical standards could result in less litigation, less confrontations with the IRS, and a good public image. Professional ethics are reflected in the standards of conduct practiced in a profession. Culturally, the members of each profession determine what is ethical. Unethical behavior practiced in a profession can affect many others in society. The S&L scandal is a prime example. Thus it is important to encourage ethical behavior in all professions. How can society promote ethical behavior? Do professionals need the threat of punishment in order to be ethical? Should laws dictate ethical behavior in every profession? Can ethical behavior instead be encouraged by doing business only with those who appear to practice ethical standards? These are questions many professionals are asking themselves. In tax practice, the Internal Revenue Code ( IRC ) and Treasury Circular 230 govern ethical behavior. In addition, the AICPA has established standards for its members, as do various bar associations for their members. Ethical behavior enacted by Congress often is nebulous requiring the courts or the Internal Revenue Service ( IRS ) to clarify the meaning of the statutes. For example, IRS Revenue Ruling in CB 377 explains (with the use of two scenarios) when a tax preparer is negligent under IRC section 6694(a) in disregarding IRS rules. In this particular case an individual received interest from his whollyowned corporation from a loan. The corporation took the deduction for the interest, but the individual did not include the interest as income on his personal return. The IRS ruled that the tax preparer would not be deemed negligent for not including the interest unless the information of the corporate return indicated who received the interest. If the corporation indicated the name of the lender, then the tax preparer should have reason to believe that the information for the individual return was not complete and would be held as negligent. Lawyers and CPAs also have professional standards that suggest ethical behavior in order to maintain an active status within the professional organization. The professional must keep current as the standards do change. For example, several years ago advertising by a CPA was considered unethical. Currently, a CPA may advertise within certain parameters. The point is that an individual practicing in a particular area of business must know what is ethical before they can display ethical behavior. The ultimate goal is a uniformity of ethics to give each member and the public confidence in the integrity and work of those in the profession. The purpose of this paper is to outline the tax professionals legal requirements, the AICPA standards, and suggestions from two of the Big Six CPA firms as indicators of ethical behavior. Rules of Ethical Behavior Enacted by the Government for Tax Preparers Treasury Department Circular 230 contains the rules and regulations that CPAs and other qualified persons must practice when representing a client before the Internal Revenue

2 106 GLENDA C. BROCK Fall 1995 Service. Subpart B in particular relates the duties and restrictions of those representing their clients. The following is a summary of some of the more basic requirements: 1. Provide information promptly to the IRS under an authorized request. 2. If an error or omission is found, the client should be notified promptly. 3. Due diligence should be exercised in determining the accuracy of all oral or written representations. 4. There should be reasonably prompt disposition of any matter before the IRS. 5. Unconscionable fees should not be charged for representing the client before the IRS. (The IRS first determines if it is unconscionable; ultimately, the courts do.) There are other matters dealing with advertising, tax shelters and so forth. However, the preceding list provides the backbone for those in tax practice. Most, if not all, require interpretation which could be left to the IRS or the courts. For example, what is due diligence? In Brockhouse v. U.S., 84-2 USTC para. 10,005, the court defined due diligence as acting as a reasonable, prudent person with respect to the information supplied to the preparer. Whether or not the definition clears up the meaning of due diligence is left to the judgement of the preparer and ultimately to the IRS or the courts. Tax preparers are assessed penalties for, among others, the understatement of taxpayer s liability, failure to furnish a copy of the return to taxpayer and to maintain a list or copy of each return completed, and failure to sign the return and/or provide an identifying number. The case of Weidmann v. U.S., 89-1 USTC para. 9197, is a prime example of a tax professional understating the taxpayer s liability. The IRS imposed a penalty for the understatement of tax liability because of the negligent or intentional disregard of rules and regulations under IRC sec Weidmann went to court to sue for a refund of the penalties for the erroneous assessment of the penalty. The facts of the case were as follows. Weidmann contacted his clients that were self-employed with a home office. He then suggested that the client execute a form to indicate that the spouse was the employee of the self-employed client. He had the client sign a form that required the husband or wife to live on the premises (client s home) and have their meals there. This procedure allowed the client to take business deductions for housing expenses and not be required to include the expenses as income to the spouse under IRC Sec Section 119 provides, in part, that meals and lodging on the business premises furnished to employee, his spouse, and his dependents pursuant to employment for the convenience of the employer are excluded from income. Weidmann tried to have the clients qualify under IRC Sec. 105 which would not require the employee to include medical reimbursements in income from his employer. The result of the scheme for several of the clients was a salary to the spouse of less than $250 and tax deductions of $4,000 to $7,000. When questioned, the taxpayers indicated there was no change in their living conditions before and after the Weidmann s scheme. They claimed they followed the advice of Weidmann to save taxes. The government s expert witness was Professor William L. Raby, a well-known author and practitioner for over 35 years. His testimony showed his disgust of the scheme and stated that the facts were so egregious that they constituted an embarrassment to the profession. The court ruled in favor of the IRS as the plaintiff had failed to sustain his burden of proof that the penalties were erroneous. Furthermore, the court added just because the IRS had

3 ETHICAL STANDARDS FOR TAX PRACTITIONERS 107 disallowed the deductions of the taxpayers was not the cause of the imposition of the penalty. The cause of the penalty was justified as follows: There is nothing wrong with professional creativity and aggressiveness in interpreting and applying the tax laws. Weidmann s imaginative scheme, however, transgressed the bounds of a novel and creative, but good faith, construction of Code provisions. Based on Mr. Raby s testimony, it is difficult to believe that an experienced CPA could have had a good faith belief that such a scheme was arguably valid. All tax practitioners are subject to the same IRS ethical rules as CPAs and are, therefore, subject to the same penalties. A good example is Judisch v. U.S., 85-1 USTC para Judisch was a lawyer, but limited her practice to tax preparation. Her usual practice was to send her clients a questionnaire, prepare the return from the completed questionnaire, and send the return to the client to be signed and mailed. Judisch rarely had communication with the client unless information on the questionnaire needed clarification. The questionnaire did not contain questions to determine if the client was entitled to a home office deduction. Yet, questions were asked to ascertain the portion of the home that was used for the production of income and the listing of other expenses in relation to the home office. Without knowing if the client was eligible for the deduction, Judisch claimed a home office deduction and included many personal expenses that did not qualify as business expenses. Judisch admitted knowing the requirements for a home office and that deductions cannot exceed home office income specified in IRC Sec. 280A(c)(5). Judisch was held to have intentionally and willfully disregarded the rules and regulations under Sec. 6694(a) and (b) for only one return where the taxpayers had no income and, in fact, no business office in the home. Procedures for Accepting Clients Application of the Requirements of the IRC and Professional Standards Several of the large CPA firms have developed procedures for accepting new clients. This step in ethical conduct is a preventive measure. If the firm accepts clients that appear to demonstrate ethical behavior, then there is less temptation to be unethical or a lower probability to be faced with unethical situations. Since there is little or no published information, it is the responsibility of each firm, large or small, to develop criteria for accepting new clients for tax return preparation. Many of a firm s clients for tax preparation are existing ones through audit work or management advisory services. The firm should have sufficient information about the client to leave little doubt about the data required to complete a Federal tax return. Individuals that bring in their information yearly to have their Federal income tax return completed require more scrutiny when deciding whether to accept them as clients. The firm should set some practical guidelines when accepting a new client. If the firm has guidelines for accepting new audit engagements, a similar approach may be appropriate for new clients for tax work. If not, the following basic guidelines may be helpful for the firm. 1. Consult with the client about his/her business, investments or other areas that may present tax problems. 2. Speak with the prior accountant(s) to ascertain possible problems. 3. Talk with mutual acquaintances for a general understanding of the client.

4 108 GLENDA C. BROCK Fall Depending on the nature of the client, the firm may wish to obtain a credit report of him/her. 5. Do not indicate acceptance of the client until the firm has so agreed. Although the list is general and a firm may desire to add additional criteria, some guidelines should be in place for accepting new clients for tax work. Exceptions to this process would be clients that are currently audit clients or clients who are familiar to members of the firm from past engagements. Accepting Client Information The preparer s declaration on signing the return states that the information contained in the return is true, correct and complete based on all information of which the preparer has any knowledge. Tax Section 132 of the AICPA Professional Standards explains that the preparer does not have to examine or verify supporting data. However, the preparer should inquire if the supporting data has been maintained satisfactorily when the information given appears to be incorrect, incomplete, or inconsistent. In other words, exercise due diligence as required by Circular 230. The CPA may wish to examine the information to his or her satisfaction. The CPA should encourage his/her clients to maintain proper records to support the information given on the return. The firm is also faced with those clients that receive information from other CPA firms (e.g., partnership K-1's). A decision must be made in regard to the information received from outside the firm. In accepting information from other CPA firms, the CPA should: 1. Take into consideration the tax basis of the entity to the client. 2. Be sure that all tax shelters are properly reported. 3. Be sure that the clients realize their responsibility for any missing data and for reviewing the Federal tax form. This list is not exhaustive, and each firm should add steps that will provide the firm with reasonable grounds for accepting the work of another firm. Disagreements with Clients If the client wishes to take a tax position that the CPA does not believe has a realistic possibility of being accepted by the IRS or the courts, the CPA should consider whether or not to prepare the return. The judgment of the CPA should include the possibility of penalties, the reputation of the firm and the effect upon the client. Tax section 112 of the AICPA Professional Standards suggests that the CPA may prepare and sign the return if the position is disclosed and is not frivolous. A frivolous position is defined as one that the CPA knows is in bad faith and is improper. The IRC Section 6702 imposes an assessable penalty of $500 on the individual who files a return which is considered frivolous (i.e., impedes the administration of the Federal income tax laws). The CPA should inform the client of the possible penalties if the position is challenged by the IRS. The judgment of the CPA is the deciding factor in matters involving errors in the return. In all cases the CPA should inform the client as suggested by the AICPA Standards. If the client refuses to correct the error, then the significance of the error in relation to the return may be the deciding factor of whether or not to withdraw from the engagement. The CPA must

5 ETHICAL STANDARDS FOR TAX PRACTITIONERS 109 remember that in signing a return, he or she is attesting that the return is true, correct, and complete based on the preparer s knowledge of the information. Confidentiality There should be no question of whether client information is confidential. The ethics section 301 of the AICPA Professional Standards states that client information should not be disclosed without the consent of the client with exceptions such as legal requirements. From the viewpoint of tax practice, the Professional Standards Section 171 iterates that the CPA maintain a confidential relationship with the client. Internal Revenue Code Section 6712 imposes penalties on tax preparers for disclosing or using tax information without the consent of the client. The penalties range from $250 to $10,000. Therefore, the information provided by the client to the CPA is confidential unless the CPA is served a subpoena or similar legal document. Liability The Internal Revenue Code of 1986 contains provisions to regulate the code of conduct of income tax preparers. The IRS has the power to impose civil penalties and even institute criminal prosecutions. While this paper is not intended to be a thorough review of the Code on the tax preparer s liability to the government, the CPA should be aware of the Code sections that create the liability. Code section 6694 includes the penalties for the understatement of the taxpayer s liability due to the negligent or intentional disregard of rules and regulations by the tax return preparer. The appropriate regulations attempt to define the terms of negligent, intentional, and understatement. The penalty can be as high as $500. Additionally, Revenue Procedure 80-40, C.B. 774, includes factors for determining whether the penalty for negligent disregard should be applied. Code section 6695 contains other penalties in respect to preparing the return. Tax return preparers must comply with Code Section 6107 in furnishing a copy of the return to the taxpayer and retaining a copy of the return. The return must by signed by the preparer and have a proper identifying number required by Code Sections 6109(a)(4) and The preparer cannot endorse or negotiate a taxpayer s check in respect to his/her taxes. The penalties for this section usually range from $25 to $500 and can reach as high as $25,000. In this as in all sections, the CPA should review the appropriate regulations for definitions and interpretations. Code Section 6696 provides the statue of limitations for the tax preparer. Generally the time limit is three years from the time the return or claim for a refund was filed, unless it is determined that there was a willful understatement of liability. In this case, it appears there is no statue of limitations. Code Section 7407 allows the IRS authority to seek injunctions against tax preparers from continuing practice if certain behavior is found to exist under section 6694 or The case will be heard in the District Court of the United States. The CPA can post a $50,000 bond to stay the injunction until the case is heard. Code Section 6701 penalizes tax preparers who aid and abet the understatement of tax liability with amounts of $1,000 except for corporations, which is $10,000. The preceding sections of the Code show that the IRS has the power to regulate the behavior of tax return preparers. It is in the best interest of a firm to be aware of the

6 110 GLENDA C. BROCK Fall 1995 consequences of not following a code of ethics and to inform all tax preparers within the firm of the ethical procedures necessary to eliminate the liability imposed by the government. Clients may use their tax returns to secure loans, apply for scholarships, or for other financial dealings, and such reliance on the return may come to haunt the CPA if proper care was not taken in preparing the return. Therefore, the need for ethical procedures again becomes apparent not only from the possible penalties from the government but also from litigation of third parties. Questionable Positions The tax treatment of some items on the tax return may not be as determinable as others. When the CPA is presented with such a problem, there are considerations that should be addressed. First, what is the best position for the client? Second, are there substantial authorities to support that position? Third, has the IRS given any indication of their position on the tax treatment? Fourth, what are the possible consequences to electing that position (interest and penalties) if there is a challenge by the IRS? If the answers to these questions favor the selected position, the CPA should document the decision. Treasury Regulations Section defines substantial authority as between a greater than a 50 percent likelihood of being upheld in litigation and a reasonable basis which prevents penalties relating to negligence or intentional disregard of the rules and regulations. In other words, it states what it is not, therefore we are to determine what it is. Subpart (b)(2) lists the authorities that the CPA and the IRS can utilize for support of a tax position. The regulation continues with how the position should be analyzed in relation to the authorities. Since the regulation above requires substantial authorities, the CPA should document the research. Documentation includes the research trail (both for and against the conclusion), the reasoning behind the conclusion, and the authorities that support that reasoning. Regulations Section (b)(3) states that the weight of authorities depends on their persuasiveness and relevance as well as their source. This section continues by stating that a taxpayer may have substantial authority for a position that is supported only by a well-reasoned construction of the applicable statutory provision. Thus, the proper documentation of a position could eliminate additional time and effort if the position is challenged by the IRS. Communication with the Client One of the most important components to tax practice is communicating with the client. A large percentage of communication is oral. The CPA should keep in mind that most individuals have little or no knowledge of tax. The two CPA firms that were consulted for this project require that prospective clients be investigated before acceptance. Therefore, oral communication with these individuals is important to let them know that their acceptance is tentative until the investigation is complete. In the beginning stages before acceptance of a client, oral or written communication should inform the prospective client about the firm s policies, fees, and procedures. After accepting the client an engagement letter should be sent that is appropriate for tax preparation. In preparing the return or in response to tax questions from the client, the CPA may discover problems that require researching. At the conclusion of the research, the position that the CPA believes to be in the best interest of the client should be documented, as discussed previously, and discussed with the client. This type of communication can be written or oral depending on the circumstances and the nature of the problem. In either case the CPA should

7 ETHICAL STANDARDS FOR TAX PRACTITIONERS 111 express himself or herself in a manner that is understood by the client. The following steps may be beneficial in relating the information to the client. 1. Review the facts of the problem. 2. Explain that the position taken is an opinion based on the information presented by the client. 3. Relate the conclusion reached through the research. 4. In the event the client wishes to take a certain position and the CPA can support that position, include any possible penalties or challenges that could occur. 5. Try to avoid technical terms that may be misunderstood by the client. Again, these guidelines for communicating with the client are not exhaustive; consequently, each firm should develop a consistent plan for such communication. Conclusions The primary source of ethics in tax practice is often the judgment of each tax professional, based on the information and circumstances of the situation. All practitioners are governed by Circular 230 and the Internal Revenue Code, and some by the AICPA or ABA Professional Standards. The AICPA publishes a review checklist of ethical guidelines to be followed by member CPA firms for income tax preparation. In summary, some of the more important guidelines to consider are: 1. Investigate potential clients. 2. Keep information confidential. 3. Maintain tax positions that have substantial authority. 4. Corroborate information that appears to be incorrect or incomplete. 5. Be an advocate for the client. 6. Document all research. 7. Keep copies of all returns and support information. 8. Stress proper oral and written communication. In response to how ethical behavior can be encouraged, it appears the courts are a major incentive. However, CPA firms are realizing the importance of maintaining high ethical standards which benefit the firm by keeping a good client file, avoiding unnecessary confrontations with the IRS, and presenting a good image to the public.

8 112 GLENDA C. BROCK Fall 1995 References American Institute of Certified Public Accountants Tax Division s Statement on Responsibilities in Tax Practice and American Bar Association s Ethics and Professional Responsibilities. Treasury Department Circular No. 230, Regulations Governing the Practice of Attorneys, Certified Public Accountants, Enrolled Agents, Enrolled Actuaries and Appraisers before the Internal Revenue Service, Subpart B - Duties and Restrictions Relating to Practice Before the Internal Revenue Service Sections