Loving v. IRS: Treasury's Authority to Regulate Tax Return Preparers

Tax Analysts


In this article, Larry Gibbs outlines why he believes a recent DC District Court decision in Loving v. Internal Revenue Service, which held that the IRS does not have the authority to implement new return preparer regulations, should be reversed in order to allow the IRS to regulate the conduct of unregulated, commercial tax return preparers. According to Gibbs, doing so would be consistent with the language of, and original intent behind, the 1884 statute (as re-codified in 1982) that is the authority upon which the Circular 230 statute, providing rules of conduct for tax practitioners, is based. Gibbs and several other former IRS Commissioners filed an amicus brief supporting the government's position on appeal. The amicus brief explained how tax return preparers represent taxpayers before the IRS by presenting taxpayers' cases to the IRS when the preparers advise and assist taxpayers in filing returns requesting refunds to obtain benefits for the taxpayers under government spending programs being run through the Internal Revenue Code. Gibbs' article broadens that argument to explain why the same principles are generally applicable to tax return preparation. "The conclusion that tax return preparers do not present taxpayers' cases to the IRS when they prepare tax returns is simply not true, based on my experience over the last fifty years," Gibbs said, adding that, "… the failure of a preparer to properly present a taxpayer's case in the preparation of the tax return can be grounds for malpractice."

Miller & Chevalier Member Alan Horowitz contributed to the article.