Congress never gave the IRS the authority to license tax preparers, and the IRS can’t give itself that power. That’s what the D.C. Circuit ruled on February 11, 2014, upholding the U.S. District Court’s January 18, 2013 ruling that the IRS didn’t have the power to impose nationwide licensing for tax preparers.

Back in 2011, the IRS imposed a sweeping new licensing scheme that forces tax preparers to get IRS permission before they can work. It was an unlawful power grab that exceeds the authority granted to the IRS by Congress.

The burden of compliance would have fallen most heavily on independent tax return preparers and small businesses. Unsurprisingly, big firms such as H&R Block and Jackson Hewitt supported the licensing scheme. As The Wall Street Journal explained: “Cheering the new regulations are big tax preparers like H&R Block, who are only too happy to see the feds swoop in to put their mom-and-pop seasonal competitors out of business.”

These regulations were typical government protectionism. They would have benefitted powerful industry insiders and at the expense of entrepreneurs and consumers, who would have had fewer options and faced higher prices. But tax preparers have a right to earn an honest living without getting permission from the IRS. And taxpayers—not the IRS—should be the ones who decide who prepares their taxes.

That is why on March 13, 2012, three independent tax preparers joined the Institute for Justice in filing suit against the IRS in the U.S. District Court for the District of Columbia. The lawsuit successfully challenged the IRS’s statutory authority to impose this licensing scheme, and overturned regulations that would affect an estimated 350,000 tax return preparers, forcing many of them to stop working in the occupation of their choice.

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For the nearly 100-year history of the modern income tax, tax return preparers were not required to obtain a license from the Internal Revenue Service (IRS) in order to prepare taxes for compensation, and taxpayers made their own decisions about who was qualified to prepare their taxes. Tax return preparers were (and are still today) regulated by a number of federal and civil criminal statutes that imposed fines of up to $100,000 per violation and felony prison sentences for violations such as tax fraud or disclosing their client’s confidential information without authorization. 1

But last year the IRS imposed a sweeping new licensing scheme that makes tax preparers dependent on IRS permission in order to make a living preparing taxes. 2 This is an outrageous power grab by the IRS that exceeds the authority granted to it by Congress. These new regulations seem designed to give the IRS much greater control over tax return preparers by making them completely dependent on IRS approval for their livelihood, potentially interfering with their ability to serve the best interests of their clients.

Meanwhile, the burden of compliance will fall most heavily on independent tax return preparers and small tax preparation businesses. One tax-industry expert has noted that these regulations create a “barrier to entry” and are a “deterrent” to smaller tax preparation businesses, predicting that the regulations “will create a vacuum” of tax preparers as independent preparers exit the market. 3 Unsurprisingly, major tax preparation firms such as H&R Block and Jackson Hewitt, which can more easily absorb the costs of compliance than their smaller competitors, supported these regulations. 4 As The Wall Street Journal explained: “Cheering the new regulations are big tax preparers like H&R Block, who are only too happy to see the feds swoop in to put their mom-and-pop seasonal competitors out of business.” 5

Even worse, these new licensing regulations are not being applied evenly to all tax preparers, and instead exempt certain favored professions and types of businesses that have the resources to lobby for special privileges. Attorneys and certified public accountants (CPAs) are exempt from these new licensing regulations. 6 And powerful interest groups, such as the American Institute of CPAs, successfully lobbied for an exemption that allows tax preparers who are supervised by CPAs (as well as attorneys or IRS-designated “enrolled agents”) at law firms, CPA firms, or “recognized firms” to prepare tax returns without meeting the licensing requirements. 7 Independent preparers who are not attorneys, CPAs or enrolled agents do not benefit from this exemption.

The new regulations require all paid tax return preparers—except for attorneys, CPAs, and several categories of “enrolled agents”—to become a “registered tax return preparer” by taking and passing a competency examination, and paying application fees. 8 Registered tax return preparers need to renew their registration annually by completing 15 hours of annual continuing education credits and paying renewal fees. 9 They also have to submit to any written or oral examination demanded by the IRS, as well as a “tax compliance check and suitability check,” at the IRS’s discretion. 10

The costs of compliance can be substantial. If a “registered tax return preparer” obtained all 15 of their required continuing education credits from the IRS Nationwide Tax Forums Online, which charges $45.00 or $67.50 per one-hour seminar, the annual cost of complying with the continuing education requirement alone would range from $675 to $1,012.50. 11 Thus, the total cost of just the continuing education component for the 350,000 independent tax preparers who are subject to these licensing regulations could be as much as $354,375,000. 12

These licensing requirements impose a substantial burden on small tax preparation businesses and independent tax return preparers, many of whom prepare taxes on a part-time or seasonal basis. 13 Many of these independent preparers and small businesses will have to either stop preparing taxes or raise their prices, making it more difficult for them to compete on price with the larger tax preparation firms, which can more easily absorb these costs, and CPA firms and law firms, which are generally exempt from these licensing regulations and thus won’t have to pay the licensing costs.

That is why on March 13, 2012, three independent tax preparers—Sabina Loving of Chicago, Ill., Elmer Kilian of Eagle, Wis., and John Gambino of Hoboken, N.J.—joined the Institute for Justice, a national public interest law firm that protects the rights of entrepreneurs, in filing a federal lawsuit against the Internal Revenue Service, challenging its statutory authority to impose these regulations on them and other independent tax preparers like them across the nation. This case seeks to overturn regulations that would affect an estimated 350,000 tax return preparers, forcing many of them to stop preparing taxes. 14

In a time of high unemployment and economic troubles, the last thing our economy needs is yet another regulation that puts people out of work. And the last thing most taxpayers need is the higher prices that are expected to result from reduced competition, not to mention the IRS telling them who can prepare their taxes. 15

The Plaintiffs

Sabina Loving owns Loving Tax Services, Inc., a new tax preparation service in an impoverished neighborhood on the South Side of Chicago where there is high unemployment and many homes and businesses are boarded up. Loving Tax Services is the first business to occupy its storefront in at least the past dozen years, and serves the residents of its community, many of whom are low-income. Prior to starting Loving Tax Services, Loving worked an accountant for more than 10 years for several large businesses, while earning a Master’s degree from Roosevelt University. She is a member of the American Institute of Professional Bookkeepers and has been preparing taxes professionally for the past three years. She expects to prepare approximately 100 tax returns this year.

Loving objects to the new licensing regulations, which are unfairly burdensome on small tax businesses like hers that meet clients in person and provide personalized service. Complying with the new licensing regulations will be costly, forcing her to increase the fees she charges her customers, which will make her less competitive with large tax prep companies. In addition, Loving would like to hire seasonal tax preparers to assist her in preparing taxes using professional tax preparation software, but she is unable to do so because under the new licensing regime, only CPAs, attorneys and enrolled agents may supervise unlicensed preparers. Although she has worked as an accountant for more than 10 years, she is not a CPA and would not be able to supervise other tax preparers even if she was licensed as a “registered tax return preparer.”

Elmer Kilian is a retired Korean War veteran living in the small village of Eagle, Wisc., where he has a wooden shingle hanging outside his house advertising his business, Eagle Tax Services. He has been preparing taxes part-time and seasonally on his dining room table for about 30 years. He prepares about 80 to 100 paid tax returns per year for individuals and small businesses in his local community. He began preparing taxes on a part-time basis after studying to become a bookkeeper at a vocational school.

Kilian prides himself on providing low-cost tax preparation services to the residents of Eagle and nearby communities, and even prepares a number of returns for free for charitable reasons. He objects to the costs imposed on him by this IRS licensing scheme, which would force him to either substantially raise the tax preparation fees he charges his customers or go out of business altogether. Because he is not willing to substantially raise the rates he charges his longtime customers, he will have to close his tax business if forced to comply with these new IRS licensing regulations.

John Gambino is a Certified Financial Planner (CFP) and registered investment advisor in Hoboken, N.J., who works primarily on assisting his clients with wealth management. Gambino also offers tax return preparation as a convenient service for his clients, and has done so since 2004. He prepares approximately 50 tax returns for compensation annually. He holds Bachelor’s and Master’s degrees from the Massachusetts Institute of Technology, and worked on Wall Street from 2001 to 2003 as an equity analyst for a hedge fund. He has passed the two-day CFP exam and takes 15 hours of continuing education courses annually to maintain his CFP certification.

Gambino objects on principle to the new IRS licensing regulations for tax preparers and believes they are an unconstitutional infringement on his economic liberty. In addition, the time and opportunity cost of compliance with the new licensing regulations will make it no longer profitable enough to justify continuing his tax preparation business. He has stopped taking new tax clients and plans to stop preparing taxes for all clients if the licensing regime goes into effect, closing his tax preparation business. Because of this, he believes that these licensing regulations ultimately harm his clients, who will lose out on an integrated platform of financial planning and tax preparation.

The Legal Challenge

The IRS is a bureau of the U.S. Department of Treasury, which is part of the executive branch of the federal government, and can only act under authority of the U.S. Constitution or federal statutes passed by Congress. The IRS claims the authority to pass, implement and enforce these new licensing regulations under a federal statute, 31 U.S.C. § 330, which governs “practice” before the Department of Treasury, and authorizes the Secretary of Treasury to “regulate the practice of representatives of persons before the Department of the Treasury.” 16 But this new licensing scheme for tax return preparers exceeds the IRS’s statutory authority under 31 U.S.C. § 330. Congress has not given the IRS the authority to license all tax return preparers, and the IRS cannot grant itself that authority.

In fact, this statute is a relic of the 19th Century; it was passed by Congress in early July of 1884, nearly 30 years before the modern income tax or the modern incarnation of the IRS, and it had nothing to do with preparing income tax returns. 17 Instead, its purpose was to prevent unscrupulous attorneys or claims agents from taking advantage of military pensioners and others who had monetary claims against the U.S. government, particularly claims for lost horses.

The new IRS licensing regulations are contained in a document known as Circular 230, which regulates “practice” before the IRS. 18 Previously, Circular 230 has only been used to regulate attorneys, CPAs and several categories of “enrolled agents,” all of whom “practice” before the IRS by representing taxpayers in hearings, conferences, meetings or other proceedings before the IRS. The vast majority of tax return preparers were previously unlicensed, but were (and are) still regulated by civil and criminal statutes. 19

In Circular 230, the IRS defines “practice before the Internal Revenue Service” very broadly to include “preparing documents” and “filing documents” as examples of “practice.” 20 By broadening the definition of “practice” far beyond its statutory meaning, and then by passing regulations based on this overly expansive definition, the IRS is attempting to dramatically expand its own power to regulate tax return preparers.

In this lawsuit (which is a statutory challenge, as opposed to a constitutional case), we will demonstrate that the IRS’s expansive interpretation of “practice” in Circular 230 is at odds with the text, legislative history and purpose of 31 U.S.C. § 330. “Practice” before the IRS was originally meant to denote the professional practice of attorneys and CPAs in representing taxpayers in proceedings before the IRS—such as arguing their client’s case in a hearing before an IRS Appeals Officer—not simply preparing and filing a tax return. 31 U.S.C. § 330 only authorizes the regulation of the “practice of representatives of persons” who “advise and assist persons in presenting their cases.” Merely preparing and filing a tax return for a customer is not an act of representation, nor is it advising or assisting any person in presenting any case.

In fact, in order to actually represent a taxpayer in a hearing or other proceeding before the IRS, a representative must obtain that taxpayer’s power of attorney—legally empowering the representative to act on that person’s behalf and even sign legally binding documents—by completing IRS Form 2848, “Power of Attorney and Declaration of Representative.” 21 But simply preparing and filing a customer’s tax return does not require obtaining his or her power of attorney, and taxpayers are still required by law to sign their tax returns themselves to verify its accuracy. 22

Therefore, tax preparers like Sabina Loving, Elmer Kilian, and John Gambino, who do not actually represent and advocate for their clients in hearings or other proceedings before the IRS, cannot be licensed under a statute that only authorizes the regulation of the “practice of representatives of persons” who “advise and assist persons in presenting their cases.”

Notably, Congress itself does not believe it has granted unlimited authority to the IRS to regulate all tax preparers under 31 U.S.C. § 330. Instead, Congress has passed specific statutes governing the regulation of tax preparers in specific—and limited—circumstances. If Congress had thought that it had given the IRS unlimited power to regulate tax preparers, it would not have needed to pass these specific statutory provisions.For example, Congress recently considered amending 31 U.S.C. § 330(a)(1) to specifically include granting authority to the Department of Treasury to regulate tax return preparers. 23 Not only did Congress not pass this amendment, but such an amendment would not even be necessary if the IRS were already authorized to regulate all tax return preparers under the existing language of 31 U.S.C. § 330.

This lawsuit continues IJ’s long tradition of fighting for the economic liberty of entrepreneurs against regulations that do little more than expand government power and protect politically powerful groups from competition. Tax preparers like Sabina Loving, Elmer Kilian and John Gambino have a right to earn a living without being forced to get permission from the IRS to do so. A victory for them will be a victory for the estimated 350,000 tax return preparers nationwide who will be subject to these regulations and to the tens of millions of taxpayer customers they serve each year.

A Solution in Search of a Problem

In addition to being unlawful and violating the economic liberty of independent tax preparers, the new licensing regulations are a solution in search of a problem. The vast majority of U.S. taxpayers report confidence in their paid tax return preparer and 87 percent would use a paid preparer in the future. 24

As noted above, all paid tax return preparers are already subject to civil and criminal statutes relating to tax return preparation that impose penalties of up to $100,000 per occurrence and even felony prison sentences up to three years’ imprisonment for violating the law. 25 Repeat offenders can even be legally barred from continuing to prepare tax returns. 26

Given these penalties, the rate of violations is predictably low. An estimated 900,000 to 1.2 million paid preparers prepare approximately 87 million tax returns annually. 27 But the IRS only recommended prosecution on 162 cases in 2001 and 2002 combined, and the IRS Examination office issued an average of less than 500 penalties per year in fiscal years 2000 and 2001. 28

Finally, the IRS has already implemented the recommended method for addressing tax return preparer accountability by requiring Preparer Tax Identification Number (PTIN) registration. The Treasury Inspector General for Tax Administration recommended that the IRS “develop and require a single identification number to control and monitor all paid preparers.” 29 The Government Accountability Office also recommended that the IRS “develop a plan to require a single identification number for paid preparers.” 30 Under the PTIN requirement, every paid tax preparer is required to register and obtain a unique identification number that must be entered on every tax return he or she prepares, permitting the IRS to identify who is preparing tax returns and which returns they are preparing. 31 Using PTINs, the IRS is better able to track repeat offenders and enforce the tax preparer laws that are already on the books.

The Defendants

The defendants in this lawsuit are the Internal Revenue Service, Douglas H. Shulman, the Commissioner of Internal Revenue in his official capacity, and the United States of America.

The Litigation Team

The Institute for Justice filed its complaint in this case, Loving v. IRS, on March 13, 2012. The Institute for Justice’s litigation team consists of Senior Attorney Scott Bullock and Attorney Dan Alban.

Founded in 1991, the Institute for Justice is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, strategic research and outreach, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by government. IJ has successfully represented entrepreneurs nationwide who fought arbitrary government regulation:

Taucher v. Born: The Institute for Justice successfully defeated an attempt by a federal agency, the Commodity Futures Trading Commission (CFTC), to license Internet and software publishers. The CFTC had demanded that individuals register as a “Commodity Trading Advisor” before they could publish any information on commodity and futures markets. In a case filed in the U.S. District Court for the District of Columbia, IJ represented publishers of online content, websites, software, books and newsletters designed to assist people in analyzing these markets, and consumers who subscribed to the sites, on-line services and publications to find information and make their own decisions.

Saint Joseph Abbey, et al. v. Castille, et al.: In 2011, the Institute for Justice secured a federal court ruling that Louisiana’s government-imposed cartel on casket sales in the state is unconstitutional. IJ represented monks of Saint Joseph Abbey of Saint Benedict, La., who wished to provide for themselves by creating and selling handmade wooden caskets. The case is currently under appeal.

Swedenburg v. Kelly—The Institute for Justice successfully waged the nation’s leading legal battle to reestablish the American ideal of economic liberty when, on May 16, 2005, the U.S. Supreme Court struck down discriminatory laws that existed only to protect the monopoly power of large, politically connected liquor wholesalers. Vintner entrepreneurs Juanita Swedenburg and David Lucas joined wine consumers and IJ in filing this federal lawsuit as a challenge to the ban on direct interstate wine shipments in New York. The case raised issues of Internet commerce, free trade among the states and regulations that hamper small businesses and the consumers they seek to serve.

For more information, contact:

Bob Ewing
Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320 ext. 206
[email protected]

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