POWER OF ATTORNEY - 222

Transcription

1 GENERAL A. A Power of Attorney is an instrument authorizing another person to obligate, bind or appear on behalf of the grantor. B. No representative can represent a taxpayer concerning any tax matter before or with the Department of Taxation and Finance, unless shch representative appears with the taxpayer or files a Power of Attorney in proper form. C. In addition to acting as a representative for a taxpayer, a Power of Attorney (emn is required in order to discliss any aspect of the audit with the representative because of the secrecy provisions. (For additional information, see Section 1146 of the Sales and Use Tax Law). For example assume the following facts: A taxpayer informs the Auditor who is about to begin an audit that all the necessary records arc at the accountant's office. The accountant had prepared the tax returns. The Auditor, although permitted to review the taxpayer's books and records, must obtain a Power of Attorney form from the taxpayer in order to discuss any audit issues with the accountant. D. In any case in which a Power of Attorney form has been filed and later the taxpayer desires to authorize an additional or a new representative to represent him in the same tax malter, a new Power of Attorney form must be filed. The new Power of Attorney form will revoke any and all po\ vers of attorney forms previously filed with respect to the same tax matter for the same tax perioclunless the grantor checks the box in Section 4 of POA-1. Statutory notices will be sent to the first representative listed on the new Power of Attorney form unless the grantor indicates otherwise in Section 5 of POA-I. In order to retain a previous Power of Attorney or to have statutory notices mailed to a previous Power of Attorney, the grantor must attach copies of the previous Power of Attorney form to the new POA-t. A revocation of a Power of Attorney is effective against the Department of Taxation and Finance when the department has notice or the revocation. E. The Power of Attorney can be granted with full power to receive a copy of all communications on a tax malter. to file a claim for refund. to receive refund checks, to appear at conferences 01' hearings or to execute consents to extensions of the statute oflimitations. 1'. If a representative desires or is dcsiguated to represent a taxpayer through correspondence with the Department of Taxation and [<inaner, the requirements ofsubmisslon ofa Pm vcr of Attorney forml11ust be met even though no actual appearance is made. G. If a representative with a proper Power of Attorney form is lincooperative or acts in any way to obstruct the completion of an audit such as postponing audit appointments or not responding to communications; the Auditor may not by-pass the representative but should utilize the available information to determine the tax due pursuant to section This does not preclude the sending of carbon copies of correspondence to the taxpayer. 1

2 H. A Power of Attorney form is not required in the following cases: 1) In the case of a trustee, receiver, or an attorney appointed by [1 court having jurisdiction over a debtor; provided a certificate is submitted hom the court having jurisdiction over the debtor showing the appointment and qualification of the trustee, receiver, or attorney and that his authority has not been terminated. 2) If an individual taxpayer, a corporate officer, or a partner appears with a representative, it will be presumed that the taxpayer on whose behalf the representative appears places no limitation upon the authority of the taxpayer's representative to receive confidential infornlution at the conlcrcnce. Tlli:.; perception lapses if the taxpayer is not present at any time. POWER OF ATTORNEY A. The department has available Power o/attol'l1ey, Form POA-l. In Section 8, the 1'01\-1 contains an affirmation regarding the Ethics in Government Act of For further infonnation, see sub section Power of Attorney/Ethics in Government Act of 1987 below. A taxpayer may utilize these forms or any form of their choice that contains the information indicated in this sub section. Pel' Regulations Section (c)(3), the Division (Auditor) may acccpt a copy or a Llcsimile transmission (l' AX) of a power of attorney. The Division (Auditor) may also require proof of the existence and validity of the original power of attorney. For consistency within the bureau, the auditor may accept a copy or facsimile transmission for the purposes of initial audit discussions but the auditor should get the original form for the audit folder. B. The use of technical language in the preparation of the Power of Attorney form is not necessary, but the Power of' Attorney form should clearly describe the proceeding in which the attorney or agent is authorized to represent the taxpayer and the taxable periods involved therein. If'the taxpayer choost's In llse a Power of Attorney form other Ihan the <-lyaibble department fnrms, the content of the taxpayer's Power of Attorney form tnust include the following: 1) The naille and address of taxpayer. 2) Statemeut of powers delegated to reprcsentative. 3) Taxpayer's signature, title, and elate signed. 4) The name and address of the representative(s) to whom the taxpayer has delegatee! authority, and their signature(s). 5) The delegation of power must be acknowledged before a notary public or witnessed by two disinterested individuals. Neither the notary nor either of the disinterested individuals may be the representative. 2

3 6) The Identification number of the taxpayer. 7) The type of tax and specific periods involved. If the Power of Attorney obtained is for a particular audit period and thereafter the audit period is extended; a new Power of Attorney mllst be obtained for the entire audit period. C. A Power of Attorney form should be signed as follows: 1) An individual taxpayer, by such individual. 2) A partnership, either by an authorized person in the name of the partnership or by one of the partners. 3) A Limited Liability Company, either by an authorized person in the name of the LLC or by 011e of its members. 4) A dissolved partnership by each of the former partners or, in case some of the partners are dead, by their legal representatives, If, however, the surviving partners at the time of the execution of the Power of Attorney have exclusive right to the control and possession of the finnts assets for the purpose of winding lip its affairs their signatures alone will be sufficient. 5) A corporation by an officer duly authorized to act. The authority to act lllay be expressed in a written authorization such as corporate by-laws. An officer may also have apparent authority if he or she holds him or herself out as one with whom the Department can act. Apparent authority is demonstrated by an officer \v11o has the necessary access to records and information. 6) vvhere there is a Notice of Determination issued to a responsible person, and the responsible person has a representative, that representative is entitled to all documents relating to that responsible person. 1ftherc arc other Notices of Determination issued to other responsible persons, the representative for one responsible person is not entitled to represent the others unless there is a Power of Attorney form all file for each responsible person, Each responsible person mllst appoint his own representative. 7) A deceased taxpayer, the Power of Attorney form can be signed by the executor, executrix or administrator. If the executor, executrix or administrator has been discharged, the Power of Attorney forl11111ay be signed by a person interested in the estate. The term "persons interested in the estatc ll includes all persons who may be entitled to receive any property or interest under a will or intestacy. A Power of Attorney f01:111 submitted by an administrator, executor or executrix must be accompanied by proof of his or her authority. A Power of Attorney form submitted by a person interested in the estate must be accompanied by proof of such interest. Proof of authority will be waived if the person signing the Power of Attorney form is the same person who signed the tax return involved. 3

4 8) Fiduciaries appointed by a court of record. In such instances the Power of Attorney form must be accompanied by a COllrt order or court certificate. Proof of authority will be waived if the person signing the Power of Attorney torm is the same person who signed the lax return involved. D. Ethics in Government Act of 1987 This Act prohibits former employees hom practicing before the agency for two years after leaving State service. In addition, employees are barred for life from engaging in any matter in which they were personally involved while in State service (sec Executive Memorandum E-160, Ethics in Government Act "Revolving Door" Policy, issued October 12, 1989). Form N-89-7 Power ojattorneylrequirements q(represelltatives Appearing Bejhre this Agellcy provides a brief summary of how the Ethics in Government Act affects former employees of the Department. In instances where the taxpayer uses a Power of Attorney f01"m other than the clepartmenfs current fol1n, the Auditor should brie±1y explain the Ethics in Government Act to the representative at the initial interview. (n addition, the representative should be given a copy of form N The Field Audil Record, Form DO-220.S should then be documented to note that the taxpayer's representative was given a copy of N-89-7 at the initial interview and that it was explained. If you believe that an individual representing a taxpayer is a former employee of this agency and may be in violation of the Public Officers Law as amended by the Ethics in Government Act, complete part I ofvonn AD-121, Power of AI/orney/Report of Alleged Vi%tiolls of the Ethics ill GoverNment Act and then forward the form to your immediate supervisor. E. Any person 18 years of age or over may act as the representative ofa taxpayer at an audit, if authorized by a proper Power of Attorney form signed by the taxpayer. However, the Tax Department reserves the right to reject an appointed representative. Only individuals may be named as representatives. A taxpayer may not appoint a finn to represent them. NOTE: Taxpayers should he apprised that in the event a case goes through the appeals process, there: are certain rules governing who can represent taxpayers. (See Title 20 NYCRR 3000 and 4000Rules of Practice and Procedures.) If the representative is other than those listed in the Rules of Practice and Procedure Rules, the Director of the Bureau of Conciliation and Mediation Services for a conciliation conference and from the Tax Appeals Tribunal for a hearing before the Division of Tax Appeals approval 11lnst be obtained /i OJ11 the State Tax Commission. However, such representative would be useful to testify as to his knowledge concerning the audit at either a conference or a hearing. 4

5 E. Two persons named on a Power of Attorney form Where a Power of Attorney form is executed by a taxpayer granting an accountant and an attorney the full power to individually execute consents extending the statutory period Jar assessment, the raet that the accountant was the only person to sign the forms and the only person to execute a conscnt to extend the statutory period of limitations cloes not invalidate the consents since there was no requirement of joint action. WRITTEN COMMUNICATIONS A. A copy of every conununication to the taxpayer must also be sent to the authorized representative(s). A limitation oftimc in the Tax L,aw docs not begin to nl11 against a taxpayer when the Department fails to send a copy of the notice to a representative who has duly filed a proper Power of Attorney. Therefore, it is essential to simultaneously send copies of statutory notices to the taxpayer's Power of Attorney. Only onc individual, from a firm or group, may be designated to receive copies of communications and notices. B. If a Power of Attorney is on file for the responsible person, duplicate statutory notices must also be sent to the responsible person's representative. PROCEDURES FOR AUDIT STAFF A. Requirements to be met upon appearance by a taxpayer representative. 1) Obtain a signed Power of Attorney in complete and proper form. 2) Verify taxpayer idcntification number is proper identitication number for the taxpayer. 3) Check which of the acts the representativc is ~mthorized to perform and note ifscopc of authority is limited in any way. 13. Requirements [or sending notices to taxpayer. Send statutory notices simultaneously to the taxpayer and to taxpayer's representative, especially where time limitations are involved, stich as Iiling n reque'lt for,1 Conciliation Conferencc with the Bureau of Conciliation and Mediation Services pursuant to a Notice of Determination and Demand (AU-16). 5

6 c. Documenting the reecipt of a Powcr of Attorney The Auditor should enter the Power of Attoll1ey on the CARTS system, LEGADD or LEGUP screens immediately aftcr receipt. The Auditor should note the receipt of the Power of Attorney in the Field Audit Record, Form DO The Auditor should indicate whether or not the Power of Attorney was acccptec!. If a new Power of Attorney form is requested, a note in the DO should be macle. Any rejection ofa Power of Attorney should be made in writing to the taxpayer and representative. PROPERLY COMPLETED POWER OF ATTORNEY A. Section 1 - Taxpayer Information The taxpayer's name, address ancl identification number mllst be complete and verified by the Auditor. 13. Scqjon 2 - Representative Information The representative's name, mailing address, tirm or applicable) and telephone llumber must be complete. Only an individual can be granted Power of Attorney, not a llnll. If a Power of Attorney changes their address or finn, a new Power of Attorney is required. If nmltiple individuals are listed in Section 2 of the POA-I, all correspondence and statutory notices should be addressed to the first name listed unless Section 5 is completed propcrly. c. Section 3 - Tax Matlers The preferred method for completing the t:1x lnattcrs jlcld on lhe power ol'attorncy I'orlll is to have the grantor enter only the case jeklltificatiol1 number (X number) in the field. This \vill limit the Power of Attorney to sales tax and there will be no need for the Auditor to get a new power of attorney form completed if the audit period is updated. This method is preferred for the completion of the power of attorney form but other variations are acceptable. If the grantor designates only a specific tax year or period and not a specific type, the power of attorney will apply to all tax types except estate tax for the designated tax year or period. If infonnation is entered in the field, verify that sales and use tax arc listed in the tax type field. 6

7 POWER OF A TTORNRY If intiwmation is entered in the tax year(s), period(s) or transaction(s) field, the field must include the entire audit period. If the audit period is updated, a new Power of Attorney form must be obtained with the entire new audit period on it. The original Pov.,rer of Attorney form canllot be altered after the fact to include the new audit period. Cross OUls and initialed revisions are not acceptable. Any period covered by a COIlSf!1I1 [... 'XfClldiJlg rhe Limitation/or ilssessment a/sales and Use Tax UncleI' Artide 28 alld 29 (~(tlie Law, Form AU-2.l 0 and signed by the POA must be included in the Power of Attorney form. 1 f the Power of Attorney form has a begin date "to present" in the tax yenr(s) section, the Power or Attorney goes through the elate the form is signed. If the form hzls a hegin date and no end clate, the Power of Attorney is does not encl. I1'the grantor does not desibtnate either a tax type or a tax period) the power of attorney will apply to all taxes and all periods. The Notice/assessment number(s) field should contain the correct audit case number, X number if any information is entered. If the taxpayer intends for the representative to have full power to receive confidential information and to perform any and all acts for them) except signing returns or delegating his or her authority, the box in Section 3 must not be checked. D. Section 4 - Retention/revocation of prior power(s) of attorney Unless the box in Section 4 is checked) any new Power of Attorney form received will revoke all earlier Power of Attorney forms on file. If the box is checked, this means that an existing Power of Attorney form will remain in effect in addition to this new Power of Attorney. A copy of the existing Power of Attorney will need to accompany this new Power of Attorney form. All statutory notices will be mailed to the taxpayer and the representative listed first on the P()\\Tf of Attorney form. If the taxpayer wishes lo ha\"l' st;llulory llolil.'l;s s,:nt to someone nthcr than the first representative listed in Sectioll 2 or the PO/\-' rnrm, they rnust enter the namc of the designated representative (listed in POA-l) Section 2) who should receive notices in Section 5. If the notices should he sent to someone not listed on the new POA-I. the Power of Attorney foll11 for the designated representative should be attached to the new POA-l) and their name designated in section 5 of thc new Power of Attorney form. F. Section 6 - Taxpayer's Signature See Guideline Section Form of Power of Attorney, sub section C, for information regarding proper signatures on Power of Attorney forms. 7

8 POWRR OF ATTORNEY G..$ectiQ-'1.7 - J\cknowlcclgcmcnt or witnessing the power of attorney The grrmtor's signature on the Power of Attorney form must be acknowledged before a notary public or witnessed by two disinterested individuals, unless the appointed representative is licensed to practice in New York State as an attorney-at -law, certified public accountant, or public accountant, or is a New York State resident enrolled as an agent to practice before the Internal Revenue Service. The Auditor must review the dates of witnessing by disinterested individuals versus the date of the taxpayer signing. These elates must be the same. The notary acknowledgement elate may be different than the date the responsible person for the business signed the form. The Auditor should review the signatures of the disinterested individuals used to witness the responsible person signature on the power of attorney form. If it is obvious that the individuals are not disinterested, the auditor should request a new, properly completed power of attorney form. If there is no reason to doubt that the witnesses arc disinterested, the auditor can accept the form. The fact that the taxpayer subsequently allo\vs the Auditor to deal with the power of attorney will serve as proof that the taxpayer intended to grant authority to the power of attorney. A disinterested person is defined as a person who is 110t concenlcd, in respect to possible gain or loss, in the result of the pending proceedings or transactions. Not having any interest in maller referred 10 or in controversy; free from prejudice or partiality; impartial or fair minded; without precuniary interest; not previously intercsted; not biased or prejudiced. Sectioll 8 - Declaration of representative The Auditor must review which designation the Power of Attorney cnters in Section 8 on the POA-l. If the selected designation is either number 5 - an employee not a corporate officer or number 6 - other, the signature of the grantor needs to be acknowledged by eithcr a notmy public or (wo disinterested individuals. If the Auditor has any concerns about the representative not being in compliance with the Ethics in Government Act, they should immediately discuss the issue with their supervisor. Sec Guideline Form of Power of Attorney, section D, Ethics in Cltwern11lcnt Act of \ 9R7 Cor further infol"lnalioll. 8