Representation before the IRS · Power of Attorney

Conference and practice requirements (Publication 216)

Publication 216 is a reprint. What it reprints — Subpart E of the Statement of Procedural Rules, 26 CFR §§ 601.501 through 601.509 — is the operative law, and where the mechanics of representation live: who counts as a representative, what a power of attorney is needed for, when it is not, how conferences run, and what happens when two representatives claim the same client.

The rule

Scope (Reg. § 601.501(a)). These rules concern representation under the authority of a power of attorney, apply to all offices of the IRS in all matters under its jurisdiction, and apply to practice before the IRS as defined in 31 CFR 10.2(a) and 10.7(a)(7) — and note that Tax Court litigation is not within it, the Tax Court having its own admission rules (§ 601.509). Authority “must be evidenced by a power of attorney and declaration of representative filed with the appropriate office.”

Definitions that carry weight (Reg. § 601.501(b)). Matter — “the application of each tax imposed by the Internal Revenue Code and the regulations thereunder for each taxable period constitutes a (separate) matter.” Practice before the IRS — “all matters connected with presentation to the Internal Revenue Service or any of its personnel relating to a taxpayer’s rights, privileges, or liabilities,” including preparing and filing documents, correspondence and communications, and representation at conferences, hearings and meetings. Representation — acts performed on a taxpayer’s behalf in that practice, which does not include furnishing information at the IRS’s request. Substitution — authority is transferred, and afterwards only the new representative acts. Delegation — afterwards both are recognized. Tax information authorization — a document authorising any individual or entity to receive or inspect confidential tax information in a specified matter.

Who is a recognized representative (Reg. § 601.502). An individual appointed as attorney-in-fact under a power of attorney who is also a member of one of the § 601.502(b) categories and files a declaration of representative. The categories: attorney (in good standing of the bar of the highest court of any state, possession, territory, commonwealth or DC); certified public accountant (duly qualified in any such jurisdiction); enrolled agent (enrolled and in active status under Circular 230); enrolled actuary (in active status with the Joint Board); and other individuals — temporary recognition, practice based on a special relationship, unenrolled return preparers, and special appearances.

Conferences (Reg. § 601.501(c)). The IRS “encourages the discussion of any Federal tax matter affecting a taxpayer.” Conferences may be offered only to taxpayers and/or their recognized representatives acting under a valid power of attorney, and as a general rule will not be held without previous arrangement — though an official may make an exception where the taxpayer shows a compelling reason for an immediate conference. Written material must be submitted by the deadline in the figures table; missing it calls for a postponement to a mutually agreeable date, and either party may still submit additional or supporting facts within a reasonable time after the conference.

Acts requiring a power of attorney (Reg. § 601.504(a)): representation; offer or execution of a waiver; execution of a consent extending the assessment or collection period; execution of a closing agreement; receipt of a Treasury check, where authority to receive (but not endorse or collect) must be specifically granted; and signing a tax return, which requires the act to be both permitted by the Code and regulations (income tax returns under Reg. § 1.6012-1(a)(5)) and specifically authorized in the power.

When no power of attorney is required (Reg. § 601.504(b)):

Disclosure of confidential tax information — submitting a tax information authorization does not constitute practice before the IRS, though a properly filed power of attorney also authorises the representative to receive and inspect confidential information for the specified matters unless it says otherwise. Estate matters — none is needed at a conference on an estate tax matter where the individual shows they are both described in § 601.502(b) and the attorney of record for the executor, personal representative or administrator before the probate court. Bankruptcy matters — none is needed for a trustee, receiver, or attorney designated to represent a trustee, receiver or debtor in possession, appointed by a court with jurisdiction over the debtor.

Filing (Reg. § 601.504(c), (d)). The power of attorney must be filed in each office of the IRS where the representative will perform § 601.504(a) acts. The IRS accepts either the original or a copy, including one received by facsimile. And representation by correspondence alone still requires a power of attorney, “even though no personal appearance is contemplated.”

Evidence (Reg. § 601.507). The IRS may require a representative to submit all evidence — except that of a supplementary or incidental character — over a declaration signed under penalty of perjury that they prepared the submission and that the facts are true. Where a representative is unable or unwilling to declare their own knowledge of the facts, the IRS may require the taxpayer to make that declaration instead.

Disputes (Reg. § 601.508). Where two or more recognized representatives dispute who is entitled to represent the taxpayer — or to receive a Treasury check — the IRS will not recognize any party. If they designate one or more of their number under an agreement signed by all, the IRS recognizes those designated on receipt of a copy.

Tax Court (Reg. § 601.509). A power of attorney is not required from an attorney of record in a docketed Tax Court case, which has its own rules of practice and admission, and correspondence goes to counsel of record. One is required from anyone other than the attorney of record in any matter before the IRS concerning a docketed case.

Current figures

How it works in practice

The definition of “matter” is the quiet foundation. Each tax for each taxable period is a separate matter — which is why Form 2848 line 3 demands the type of tax, the form number and the periods, and why a general reference is rejected. Authority does not spread from one year to the next or from income tax to employment tax.

Substitution and delegation are not synonyms. After a substitution, only the new representative is recognized. After a delegation, both are. Reg. § 601.501(b)(5) and (b)(14) define them separately for that reason, and a question describing one representative bringing in another without stepping aside is describing delegation.

Furnishing information is not representation. Reg. § 601.501(b)(13) excludes it in terms — which is why an uncredentialed individual may respond to an IRS request for information without any authorisation, and why doing so does not make them a representative.

Three § 601.504(a) acts carry most of the questions: signing a consent extending the assessment or collection period, a waiver of restrictions on assessment, and a closing agreement. All three need a power of attorney, and all three are beyond a Form 8821 designee. Two more have extra conditions — receiving a Treasury check needs specific authority and never extends to endorsing or collecting it, and signing a return needs both a Code permission and specific authority in the power.

The estate exception is narrower than it sounds. No power of attorney is needed at an estate tax conference, but only where the individual is both eligible under § 601.502(b) and the attorney of record before the probate court. The family’s accountant does not qualify; nor does a probate attorney without § 601.502(b) eligibility.

The dispute rule is unforgiving. Where two representatives contest the engagement, the IRS recognizes neither — it does not pick the earlier filing or the senior practitioner. The only exit is a written agreement signed by all of them designating who acts. Until then the taxpayer is effectively unrepresented.

Tax Court and the IRS are different fora. Counsel of record needs no power of attorney in the docketed case, and correspondence goes to them. But once someone other than counsel of record deals with the IRS about that case, Reg. § 601.509 requires one.

The § 601.507 declaration is a real exposure. A representative signing it certifies both that they prepared the submission and that the facts are true. One who cannot personally vouch for the facts should say so — the consequence is defined: the IRS may require the taxpayer to declare instead. That is the answer, not signing anyway.

How this has changed

The sections were rewritten at 56 FR 24001–24009 on May 28, 1991 and amended at 57 FR 27356 on June 19, 1992.

Publication 216 has not kept up. The version the IRS still posts is Rev. 3-92 — March 1992 — and its front matter lists the amendments it incorporates, ending with “56 F.R. 24001-24009 dated May 28, 1991.” It therefore predates the June 1992 amendment to the very sections it reprints, and has not been revised in the thirty-four years since. Treat it as a convenience copy and the CFR as the text; this page cites the regulation throughout.

The regulations carry visible age of their own, which does not affect their operation. Reg. § 601.501(b)(8) still defines an “office of the Internal Revenue Service” by reference to district directors, regional commissioners and service centers — offices reorganised out of existence by the IRS Restructuring and Reform Act of 1998. Reg. § 601.502(b)(5) still routes temporary recognition and special appearances through the Director of Practice, which became the Office of Professional Responsibility in 2003. And § 601.502(b)(5)(iii) still describes unenrolled return preparers as limited to representation “before revenue agents and examining officers of the Examination Division in the offices of District Director.” The structural vocabulary is obsolete; the substantive limit — an unenrolled preparer’s authority runs only to examination of a return that preparer prepared — is not.

Reg. § 601.501(a) also routes alcohol, tobacco and firearms activities to §§ 601.521–601.527, outside this subpart.

Exam focus

Know that each tax for each taxable period is a separate matter, and that this is the reason a power of attorney must name the tax, the form and the periods.

Know the § 601.504(a) acts — representation, waiver, consent extending the assessment or collection period, closing agreement, receipt of a Treasury check with specific authority, and signing a return with both a Code permission and specific authority. Know the three situations needing none: a tax information authorization for disclosure, an estate tax conference where the individual is both § 601.502(b)-eligible and the attorney of record before the probate court, and bankruptcy trustees, receivers and their designated attorneys.

Know that substitution leaves only the new representative and delegation leaves both, that a dispute means the IRS recognizes nobody, and that Tax Court counsel of record needs no power of attorney but anyone else dealing with the IRS on that case does.

Check yourself

1. What constitutes a separate “matter” under Reg. § 601.501(b)(7)? (A) Each taxpayer (B) Each tax, for each taxable period (C) Each IRS office involved (D) Each representative appointed Answer: B. Which is why authority must be granted tax by tax and period by period.

2. A representative brings in a colleague under a delegation. Who is recognized afterwards? (A) Only the colleague (B) Only the original (C) Both (D) Neither, until a new form is filed Answer: C. Reg. § 601.501(b)(5). After a substitution under § 601.501(b)(14), only the newly recognized representative acts.

3. Two recognized representatives each claim authority over the same matter. What does the IRS do? (A) Recognizes the earlier-filed power (B) Recognizes the senior practitioner (C) Recognizes no party until they file an agreement signed by all (D) Asks the taxpayer to choose Answer: C. Reg. § 601.508. The contesting representatives may designate one or more of their number under an agreement signed by all.

4. In which situation is no power of attorney required? (A) Signing a consent to extend the assessment period (B) An estate tax conference where the individual is § 601.502(b)-eligible and the attorney of record before the probate court (C) Executing a closing agreement (D) Representing by correspondence only Answer: B. Reg. § 601.504(b)(2) requires both conditions. Correspondence-only representation does require one, under § 601.504(d).

5. A representative is unwilling to declare under penalty of perjury that submitted facts are true. What follows? (A) The submission is rejected (B) The IRS may require the taxpayer to declare (C) The representative must withdraw (D) The evidence is treated as supplementary Answer: B. Reg. § 601.507, which also excepts evidence of a supplementary or incidental character from the declaration requirement.