- Unlimited practice: attorneys, CPAs, enrolled agents
- Enrolled actuaries and retirement plan agents
- Return preparers and the Annual Filing Season Program
- Limited practice based on a relationship
- Students, special appearances and representation abroad
- Fiduciaries are not representatives
- Form 2848 designations and what the CAF checks
- Who cannot represent
- Questions practitioners ask
Unlimited practice: attorneys, CPAs, enrolled agents
The IRS AFSP page puts it plainly: “Attorneys, CPAs, and enrolled agents continue to be the only tax professionals with unlimited representation rights, meaning they can represent their clients on any matters including audits, payment/collection issues, and appeals.”
The definitions are in Circular 230 section 10.2. An attorney is “any person who is a member in good standing of the bar of the highest court of any state, territory, or possession of the United States, including a Commonwealth, or the District of Columbia.” A CPA is a person “duly qualified to practice as a certified public accountant” in any of the same jurisdictions. An enrolled agent is enrolled under Circular 230 and not suspended or disbarred (section 10.3(c)). Attorneys and CPAs practice by filing a written declaration that they are qualified and authorized, which is Part II of Form 2848.
The CAF unit's checks reflect these definitions. IRM 21.3.7.5.1 tells examiners that “Tribal Court advocates and Social Security disability advocates are not “attorneys.”” For CPAs, a missing license number is not a reason to reject if the state is shown. Licensed public accountants can use the CPA designation in states where an LPA has the same rights as a CPA; IRM 21.3.7.5.2 lists such states and also lists states where LPAs or RPAs are not eligible to practice as CPAs (Delaware, Illinois, Iowa, Kansas and Michigan), with other states referred to OPR. Enrolled agents enter IRS as the jurisdiction and their enrollment card number.
Enrolled actuaries and retirement plan agents
Both may practice, but only on defined subjects. Section 10.3(d) limits enrolled actuaries to representation on listed Code provisions relating to employee plans (sections 401, 412, 4971 and others). Section 10.3(e) limits enrolled retirement plan agents to the Employee Plans Determination Letter program, the Employee Plans Compliance Resolution System and the master and prototype and volume submitter program, plus generally the 5300 and 5500 series forms, “but not with respect to actuarial forms or schedules.” Both can request a POA in Tax Pro Account.
Return preparers and the Annual Filing Season Program
A preparer who is not an attorney, CPA, enrolled agent, actuary or retirement plan agent can represent only in a narrow situation. The Form 2848 instructions say unenrolled return preparers “may only represent taxpayers before revenue agents, customer service representatives, or similar officers and employees of the Internal Revenue Service (including the Taxpayer Advocate Service) during an examination of the tax period covered by the tax return they prepared and signed.” They “cannot represent taxpayers, regardless of the circumstances requiring representation, before appeals officers, revenue officers, attorneys from the Office of Chief Counsel,” and cannot execute closing agreements, extend statutes, execute waivers or claims, or sign documents for the taxpayer.
For returns prepared and signed after December 31, 2015, the preparer must also hold a valid AFSP Record of Completion for the year the return was prepared and for the year of representation, plus a valid PTIN. The AFSP page summarizes: AFSP participants “can represent clients whose returns they prepared and signed, but only before revenue agents, customer service representatives, and similar IRS employees, including the Taxpayer Advocate Service,” while PTIN holders without the record or another credential “will only be permitted to prepare tax returns.” Getting the record requires 18 hours of continuing education including a six-hour refresher course with test, PTIN renewal and consent to Circular 230 subpart B and section 10.51.
The CAF unit researches every designation h form. IRM 21.3.7.5.6 says the preparer “can only file a Form 2848 if the representative prepared and signed the tax return for the year(s) or periods(s) submitted and the return is under examination with the IRS.” Examiners verify an exam indicator and match the preparer's PTIN on the return; otherwise the taxpayer gets Letter 4527C. Level h authority cannot include signing returns or statute extensions, future periods, substitution, disclosure to third parties or civil penalty representation.
The registered tax return preparer designation no longer operates. Circular 230 as published still contains section 10.3(f), but IRM 21.3.7.5.6 explains that after the D.C. Circuit's 2014 decision in Loving v. IRS the Level I designation was removed, and “If the CAF function receives a Level I designation for processing, it shall be treated as a Level H, Unenrolled Return Preparer.” A preparer who does not qualify can still receive information on a Form 8821.
Limited practice based on a relationship
Section 10.7(c)(1) lets non-practitioners represent in specific relationships, “even if the taxpayer is not present, provided the individual presents satisfactory identification and proof of his or her authority”:
| Relationship (section 10.7(c)(1)) | Form 2848 designation | CAF and IRS notes |
|---|---|---|
| Immediate family member | f | Relationship must be stated: spouse, parent, child, brother, sister, grandparent, grandchild, step-parent, step-child, step-brother or step-sister |
| Regular full-time employee of an individual employer | e | Authority tied to the business; individual matters only for a sole proprietor's own business |
| General partner or regular full-time employee of a partnership | e (for an employee) | IRM 21.3.7.5.2: a full-time employee named for a partnership or S corporation may also represent a partner or shareholder |
| Bona fide officer or regular full-time employee of a corporation, association or organized group | d or e | Designation d cannot be used for a Form 1040 matter |
| Regular full-time employee of a trust, receivership, guardianship or estate | e | Title or position required |
| Officer or regular employee of a governmental unit, in official duties | Representing the governmental unit itself | |
| Anyone, for a taxpayer outside the United States, before IRS personnel outside the United States | Leave the licensing jurisdiction blank (Form 2848 instructions) |
PPS will not assist designations d, e or f unless the caller is a practitioner (IRM 21.3.10.3.1.1), so these representatives use the general toll-free lines. Suspended or disbarred individuals cannot engage in limited practice (section 10.7(c)(2)).
Students, special appearances and representation abroad
Law, business and accounting students and recent law graduates in Low Income Taxpayer Clinics or the Student Tax Clinic Program may represent under a special appearance authorization from the Taxpayer Advocate Service. IRM 21.3.7.8.5 defines an eligible law graduate as someone who graduated within the past two years and has not yet been admitted to a bar. The Form 2848 must list the supervising attorney or CPA first, show designation k with “LITC” or “STCP,” and attach the TAS authorization letter. Students so authorized “may, subject to any limitations set forth in the letter from TAS, fully represent taxpayers before any IRS office,” but the CAF purges the authorization: “Students/law graduates representations remain on the CAF for a total of 130 days.”
Others may apply for a special appearance under section 10.7(d). Publication 947 says the request goes in writing to the Office of Professional Responsibility and “it is granted only when extremely compelling circumstances exist.”
Fiduciaries are not representatives
Section 10.7(e) says a fiduciary “is considered to be the taxpayer and not a representative of the taxpayer.” An executor, trustee, guardian or receiver files Form 56 rather than Form 2848, then signs a Form 2848 on the taxpayer's behalf if a representative is wanted. See Form 56 and deceased taxpayers. An attorney-in-fact under a general durable power of attorney is different again: the IRM treats that person as able to sign a Form 2848 for the principal, but the durable POA alone does not go on the CAF (IRM 21.3.7.8.4).
Form 2848 designations and what the CAF checks
| Code | Category | Enter in Part II |
|---|---|---|
| a | Attorney | State of admission; bar or license number if any |
| b | Certified public accountant | State of licensure; certificate or license number if any |
| c | Enrolled agent | Enrollment card number |
| d | Officer | Title |
| e | Full-time employee | Title or position |
| f | Family member | Relationship |
| g | Enrolled actuary | Joint Board enrollment number |
| h | Unenrolled return preparer | PTIN |
| k | Qualifying student or law graduate | LITC or STCP |
| r | Enrolled retirement plan agent | Enrollment number from the Return Preparer Office |
Ordinarily employees do not research a representative's status. IRM 5.1.23.3 says “Ordinarily, it is not required to research the status of a representative. However, you may choose to verify a representative's eligibility.” The CAF, however, records OPR suspensions and disbarments, and forms from those practitioners are not processed. See why the CAF unit rejects a form.
Who cannot represent
Suspended and disbarred practitioners cannot represent or engage in limited practice; they may receive information on a Form 8821 only (IRM 21.3.7.9.2). Section 10.3(h) bars federal officers and employees and Members of Congress where practice would violate 18 U.S.C. 203 or 205, and section 10.3(i) bars state employees whose duties involve tax matters if the employment may disclose facts applicable to federal tax matters. The CAF unit does not process authorizations naming government agencies as representatives or designees to obtain records for non-tax programs (IRM 21.3.7.5.3).
The Tax Court is separate. 26 CFR 601.509 says a power of attorney is not required for an attorney of record in a docketed Tax Court case, because “The Tax Court has its own rules of practice and procedure and its own rules respecting admission to practice before it.” See Tax Court petitions.
Questions practitioners ask
Can an unenrolled preparer represent a client in collection?
No. Even with an AFSP Record of Completion, representation is limited to examinations of returns the preparer prepared and signed, before revenue agents, customer service representatives and similar employees. Collection, Appeals and Counsel are excluded.
Can I represent my brother before the IRS?
Yes, under section 10.7(c)(1)(i) for immediate family. Use designation f and state the relationship. You cannot use PPS unless you are a practitioner, and you remain subject to IRS standards of conduct.
Is a licensed public accountant treated as a CPA?
In some states. IRM 21.3.7.5.2 lists states where LPAs have CPA rights and states where they do not; other states are referred to OPR for a determination.
How long does a student authorization last on the CAF?
130 days. After that the clinic must obtain a new TAS authorization letter and file a new Form 2848.
Does a durable power of attorney let me represent my parent?
It can let you sign Form 2848 for your parent as attorney-in-fact, which you attach to the durable POA. To represent, you still need to be eligible: as a family member you qualify under designation f.
Do I need a Form 2848 in Tax Court?
Not as attorney of record in a docketed case; the Tax Court has its own admission rules. A Form 2848 is still needed for anyone else dealing with the IRS on the docketed case.