Circular 230 Important Revisions

Circular 230 Important Revisions

SEGMENT 1:
Robert S. Walton, Partner,
Baker & McKenzie LLP

• What are the levels of due diligence necessary for a tax return preparer to determine whether the advice given addresses or the return contains a reportable transaction or a section 6662 tax shelter?
• How will the proposed section 10.34 rules affect situations where the tax return preparer addresses a reportable transaction or a section 6662 tax shelter but does not conclude that the position is more likely than not correct?
• How will the ambiguities of the definitions of reportable transactions and the section 6662 tax shelter affect tax return preparers with the new proposed section 10.34

SEGMENT 2:
Christopher S. Rizek, Member,
Caplin & Drysdale

• Application of the PTIN and various other of the return-preparer regulation rules to non-signing return preparers. This is an issue of great concern to practitioners, for instance in law firms or the national offices of the big accounting firms, who may render advice regarding a substantial portion of returns or claims for refund but who are not the signing preparer whose PTIN goes on the return. 
• The proposed section 10.34 rules. I suspect Eve and I have similar but slightly different views on the wisdom of incorporating the 6694 standards. I at least am not convinced Congress got 6694 right in the first place – we can of course debate that – but from a technician's standpoint I also don't think the way OPR has tried to incorporate it in 10.34 is technically right either. (The separate use of "reasonable basis" in 10.34(a)(1)(i)(A) is in my view superfluous, for instance.) 
• I also share several of the concerns highlighted by Eve and Robert – eg the ambiguity of the tax shelter definition, the extension of 10.36 to return preparation, what "wilfullness" means for Cir. 230, etc. 
• More broadly, all of this raises very interesting questions of ethics and compliance policy. For instance, it highlights one thing that I have come to believe about Cir. 230, which is that it is not about ethical conduct but about efficient tax administration – any more than 6694 or any number of other penalty provisions are about "ethics." (Actually, they're mostly about tax shelters now, but I digress….) I have lots of examples in Cir. 230 – Eve highlighted one for instance, the notion that failing to file electronically is "disreputable" – is it really?! But here's the one raised by 10.34. Right now, our "ethical" standard is still the one enunciated by the ABA in Formal Opinion 85-352, which interprets the Model Rules that have now been adopted by all states. (The AICPA's standard in Statement 1 is similar.) 6694 and now Cir 230 are at higher levels of authority (at least for non-disclosed positions). Why? Is RPSM suddenly unethical? Or has the ABA in effect been overruled by Congress? Are your ethical duties subject to the whims of Congress, or can I ethically do something that fails what Congress sets (and now OPR has incorporated) as a standard required for efficient tax administration? When you have these kinds of competing standards, must you always default to the most restrictive one? And, when I have other duties on behalf of a client(eg zealous advocacy), isn't that in itself a conflict between practitioner and client? (Interestingly, that was one of the arguments asserted against raising 6694 to MLTN rather than substantial authority in the 2007-2008 time frame.)

Circular 230 Important Revisions

Robert S. WaltonPartnerBaker & McKenzie LLP

Robert S. Walton works mainly on tax matters. He is a member of the bar of the US Tax Court, a member of the US Circuit Courts of Appeals, the Court of Federal Claims, the US District Court for the Northern District of Illinois and Court of Appeals, as well as the US Supreme Court. Prior to graduating at the Harvard School of Law, Mr. Walton earned his B.S. in Accountancy from the University of Illinois.

Practice Focus

Mr. Walton works with clients at all stages of tax controversies from the audit level, to IRS Appeals, to litigation in the Tax Court and other federal courts. He has experience in tax planning —including mergers and acquisitions, tax deferral and withholding taxes —and provides counsel on tax issues arising from financial products.

Admission

Illinois Supreme Court~United States (1996) U.S. Court of Appeals, Eighth Circuit~United States (2005) U.S. Court of Appeals, Fifth Circuit~United States (2000) U.S. Court of Appeals, Sixth Circuit~United States (2002) U.S. Supreme Court~United States (2002) U.S. Tax Court~United States (1996) U.S. District Court, Northern District of Illinois~United States (2006) U.S. Court of Federal Claims~United States (2008) U.S. Court of Appeals, Federal Circuit~United States (2008)

Education

Harvard Law School (J.D.) (1996) University of Illinois (B.S. with High Honors) (1993)

Christopher S. RizekMemberCaplin & Drysdale

Christopher S. Rizek is a member of the law firm of Caplin & Drysdale, Chartered, in Washington, D.C. He formerly served as Associate Tax Legislative Counsel in the U.S. Treasury Department, Office of Tax Policy, where he helped write tax procedural guidance and legislation, including particularly the Taxpayer Bill of Rights 2 (1996) and the IRS Restructuring and Reform Act of 1998. He has also previously worked in other Washington law firms and as a Trial Attorney in the U.S. Department of Justice, Tax Division.

Mr. Rizek has a bachelor’s degree in philosophy from Dartmouth College and received his J.D. and his LL.M. in Taxation from Georgetown University Law Center. He currently is an Adjunct Professor at Georgetown University Law Center, was formerly Chairman of the Anne Arundel County (Maryland) Ethics Commission, and has chaired committees and served in other capacities in the D.C. Bar’s Taxation Section and the American Bar Association, Section of Taxation.

Click Here to Read Additional Material

No Access

You are not logged in. Please Login or register to the event to gain access to the materials and login instructions.