THE LAW OFFICES OF ROBERT S. STEINBERG

Practice Limited to Taxation

TAX ACCOUNTANT OR TAX LAWYER: WHO SHOULD REPRESENT ME?

Posted on 10/29/2011

INTRODUCTION

Visionary legend J.K. Lasser, (deceased 1957)[i], is perhaps best known today for the tax books published by an institute bearing his name.  He did author books himself and the CPA firm J.K. Lasser & Co. included some of the most brilliant tax minds of the 1950s and 1960s, including David B. Chase and Jacquin Bierman (passed away at 95 on Miami Beach in 2010) and Beryl Abbin. It is said that together they coined the phrase estate planning and helped found the NYU Tax Institute. Chase and Beirman, also attorneys, had a law firm down the hall from the accounting firm.  The CPA-lawyer partners would actually walk clients up and down the hall between the accounting and law practices.  The dual practice led to conflicts with several state bars but inherent in JK Lasser/ Chase & Beirman was recognition that accounting cannot easily be separated from law in tax practice.

This article will discuss the interrelationship and overlap of accounting and law in tax practice.  I will attempt to mark the boundary separating law from accounting in some tax areas.  I will discuss the potentially rather dire consequences to a CPA who wanders into the legal terrain and enumerate measures a CPA should take to protect against these risks.

OVERLAP OF ACCOUNTING AND LAW IN TAX PRACTICE

 A CPA recently said to me: “Circular 230 authorizes me to practice law in the tax field.”  At first blush this statement seems accurate. The practice of law has been defined to include, “The giving of advice and performance of services (that) affect important rights of a person under the law.”[ii]

 Even tax return preparation involves legal analysis and affects taxpayer rights.  Each entry in a tax return is an interpretation of some provision of the Internal Revenue Code, Treasury Regulations and/or case law. Tax returns often include elections such as the election to file a joint return which creates liability for taxes owed that is joint and several.  Tax returns are signed under express penalty of perjury and result in a federal tax lien arising for unpaid taxes.  Some courts have nonetheless referred to tax preparation as a “scrivener’s function” (a ludicrous statement given the complexity of tax returns) and not the practice of law, in holding that communication to a tax preparer, whether CPA or lawyer, of information to be disclosed in a tax return is not protected by the attorney-client privilege. These courts were focused on preserving to the legal profession a privilege dating to Roman times and were not focused on whether tax return preparation involves legal analysis of federal law.  The more meritorious position adopted by many courts is that for tax return information the privilege is waived because the information is imparted with disclosure not privacy in mind.  

 Tax advice completely obliterates the distinction between accounting and law.  Tax advice involves interpreting tax statutes and reading and understanding court decisions on tax controversies.  Tax advice involves applying tax law to a client’s particular situation.   Giving such advice will undoubtedly “affect important rights of a person under the law.”[iii]

On the other hand accounting has been defined as: “the art of recording, classifying and summarizing in a significant manner and in terms of money, transactions and events which are in part at least, of a financial character, and interpreting the results thereof;”[iv] also, as “a service activity. Its function is to provide quantitative information, primarily financial in nature, about economic entities that is intended to be useful in making economic decisions—in making reasoned choices among alternative courses of action.” [v] 

FEDERAL PRE-EMPTION AND CIRCULAR 230

How then did accountants become involved in tax practice which clearly includes aspects normally associated with the practice of law?  Congress authorized the Department of the Treasury and the Treasury issued regulations embodied in what is referred to as Circular 230 authorizing both lawyers and non-lawyers (including CPAs) to practice before IRS with regard to:[vi] 

“all matters connected with a presentation to the Internal Revenue Service or any of its officers or employees relating to a taxpayer’s rights, privileges, or liabilities under laws or regulations administered by the Internal Revenue Service. Such presentations include, but are not limited to, preparing documents; filing documents; corresponding and communicating with the Internal Revenue Service; rendering written advice with respect to any entity, transaction, plan or arrangement, or other plan or arrangement having a potential for tax avoidance or evasion; and representing a client at conferences, hearings, and meetings.”

Does this federal authorization prevent a state bar from enjoining a non-lawyer from tax practice within its borders?  The leading case involved not tax law but practice before the U.S. Patent Office under federal authorization similar to Circular 230.  The U.S. Supreme Court held that a federal law enacted in pursuit of constitutionally granted federal powers is the supreme law of the land.  As such, federal law pre-empts the field; and, the State of Florida could not restrict non-lawyer Mr. Sperry from practicing before the U.S. Paten Office to the extent that the practitioner’s activities “are necessary for the accomplishment of the federal objectives (emphasis added).”[vii]  The U.S. Supreme court acknowledged that Mr. Sperry’s activities before the U.S. Patent Office included many acts normally restricted to those licensed to practice law (i.e., giving advice, rendering opinions on patentability or infringement of patents and preparing legal documents for applicants). The court noted, however, that state courts maintain control over the practice of law outside of the boundary of federal pre-emption.  No case to date has addressed the same issue with regard to federal tax practice but it is widely believed that an attempt by a state bar to restrict federal tax practice within the boundary of the federal pre-emption would bring the same result as in Sperry.

Returning to my CPA friend’s comment about practicing law: Circular 230 states this caveat:  “Nothing in the regulations in this part may be construed as authorizing persons not members of the bar to practice law.”[viii]  CPAs, lawyers and others are thus authorized to practice before IRS and it is the IRS and not the State and Federal Bars that authorizes most aspects of tax practice, i.e., representative dealings with the agency.  So authorized, a CPA may represent a taxpayer in any matter before the IRS, including appeals but excluding Court representation unless admitted to the Tax Court[ix], a particular District Court, Court of Appeals, Court of Claims or U.S. Supreme Court. Although the AICPA does not license tax practitioners, it has issued standards for tax practice applying to its members.[x] Below are discussed some areas likely not protected by the federal pre-emption.

First, why did the Treasury authorize non-lawyers to engage in acts normally considered as the practice of law?  That tax advice and tax preparation involve aspects of tax law becomes secondary to practical necessity and the reality that lawyers could not possibly handle the millions of annual tax return filings.  Moreover, many aspects of tax law are intermingled with accounting concepts (e.g. methods of accounting) more in line with an accountant’s training and skill-set than with a lawyer’s. Thus, law firms would have had to hire accountants to deal with the accounting side of tax practice; instead, accounting firms have hired lawyers to deal with the legal side.  In 1970 I was employed in the tax department of Peat Marwick Mitchell & Co’s New York City office which encompassed about 100 tax professionals with about ½ being attorney-CPAs.  My partner was a former justice department special tax litigator. When I transferred to PMM & Co’s Miami office in 1972 the tax department there consisted of mostly attorney-CPAs.  Today the Big Four employ thousands of attorney-CPAs and attorneys who are not CPAs.[xi]

TAX PRACTICE TERRAIN

 Circular 230 offers no bright red line for tax practitioners regarding what acts of non-lawyers go beyond the federal pre-emption. Thus, we practice in a broad terrain or gray zone with no clearly defined borders.  Some matters in this unmarked terrain, while permitted under Circular 230, involve areas of tax practice more closely aligned with legal training and skills than with accounting expertise.  Some matters handled by CPAs tread dangerously on the edges of acts permitted by the federal pre-emption. Both kinds of encroachment committed wittingly or unknowingly pose serious problems for both CPA and client.

 The question for every tax practitioner, lawyer or CPA, is not only “what tax engagements or aspects of a tax engagement I may legally undertake; but which engagements or aspects I should professionally and ethically undertake.” Be mindful of Aristotle’s admonition, “What lies in our power to do, lies in our power not to do.”  Some matters better fit a CPAs training; some would be best handled by a tax lawyer; and, some best serve the client if handled jointly by a lawyer and CPA.

 My objective is to raise awareness about the ambiguous nature of tax practice and of those areas that a CPA can make informed decisions about how far to carry the ball in client tax representation and knowingly manage risks for client and professional.  Some matters of concern are:

  • When client may later want communication to be privileged and not available to IRS or others: The CPA’s tax advice privilege under Section 7525 evanesces if a matter turns criminal.[xii] Also, giving personal papers to a CPA will waive whatever Fifth Amendment Privilege might exist regarding the “act of production.” Thus, so called “eggshell audits” should never be handled by a CPA alone.  Nonetheless CPAs must remember that only the client can waive the 7525 privilege and CPA-client confidentiality privilege under Florida law.[xiii] Thus, a CPA, when presented with request for documents or to answer questions, should always contact the client to request permission to discuss or disclose confidential matters. Otherwise, CPA should not disclose anything absent a valid court order or subpoena.
  • When work product of the CPA should remain private and not be discoverable.  This problem often arises in divorce cases where the forensic expert account will review and sometimes prepare tax returns. An expert CPA hired to offer testimony in open court has no work product privilege; and, all that goes into opinions is fair game for ultimate revelation during discovery, at trial or in criminal legal proceedings. This danger is not altered by changes in Amended Rule 26, Federal Rules of Civil Procedure in federal courts making drafts of expert valuation reports, communications with counsel and information not considered by expert, non-discoverable in civil litigation. This is a discovery rule, not a privilege and will not prevent introduction of such material into evidence at trial or revelation in a criminal case. Moreover, it can be near impossible to separate what an expert used in his opinion from what he did not use. Subjectively, doesn’t everything an expert hears and sees go into the brain to form part of the decision making process?[xiv] The wise course is to employ a separate consultant from the expert.
  • When federal law depends in part on an interpretation of state law: A CPA who gives tax advice on the state law aspect of the problem is practicing law that may not be covered by the federal preemption.  For example in collection matters before IRS, whether a levy attaches to an alleged nominee interest,[xv] fraudulent transfer, or alleged resultant trust.  Another example is alimony. Determining if a stream of payments to a former spouse will end on the death of the payee spouse, a requirement for the payment to be treated as alimony.[xvi]  Often this state law question is a non-issue because the agreement so states or states the payment is spousal support which ends at death under Florida law.  But, other payments such as mortgage payments of principal, interest, taxes and insurance require state law analysis.[xvii]  Yet another example is determining income versus principal under state law.[xviii]  Many items are straightforward but some receipts such as partial liquidating distributions[xix] may require a broader state law analysis. Thus, UPIA is a landmine for an accountant who wings it without seeking legal guidance on application of Florida UPIA. Similarly, the applicability and priority of the federal tax lien regarding property interests[xx] involves both federal and state law analysis.  A CPA who gives federal tax advice and simply ignores the related state law issues will be found negligent.
  • When tax advice depends in part on interpretation of foreign law: For example, determining characteristics of foreign entity so as to characterize under U.S. law as trust or association etc;[xxi]or, determination whether foreign entity is a corporation entitled to treaty benefits for purposes of definition of applying tax rate on qualified dividends.[xxii]
  •  Choice of Forum: when action by CPA will lock client into one forum and rule out others: The Tax Court is one of several forums in which tax disputes may be resolved.  It is the most used forum having jurisdiction upon IRS properly mailing a Notice of Deficiency. Tax Court jurisdiction is not conditioned on first paying the tax.  Other tax forums are available but access requires payment of the tax and denial of a refund claim (U.S. District Courts and U.S. Court of Federal Claims). Bankruptcy court can be forum for determination of the debtor’s tax liabilities before payment.[xxiii] Actions of a CPA in filing Form 8857 Request for Innocent Spouse Relief, or Form 656, Offer in Compromise implicitly involve choice of forum decisions beyond the training of a CPA.  In most instances Tax Court is the best or most financially practical alternative but there are some cases in which trial in another forum might better serve the client.  For example, a putative “innocent spouse” who is jury-sympathetic and can pay the tax up-front may prefer U.S. District Court to trial before a savvy Tax Court judge.
  • When case is docketed in Tax Court:  Filing Small Case Tax Court Petition in hope of settling / Appeals in general:    Despite IRM statement that there is no difference in how docketed and non-docketed cases are handled, the Appeals Officer knows taxpayer must first retain admitted counsel to proceed with case.  In any negotiation that party will have greater leverage. The client may later claim CPA accepted less than optimum settlement knowing he or she could not represent client in court.  Once the docketed case goes into trial preparation CPA may become involved in impermissible Tax Court representation rather than permissible representation of client before administrative agency.  For example, the stipulation process is conducted under Tax Court Rule 91, not IRS administrative regulations and is mandated in the Tax court’s Standing Pretrial Order which also requires filing of a Pre-trial Memorandum. The Hazards of litigation include not only “facts and  law” analysis but consideration of all procedural case strengths or weaknesses as burden of proof, admissibility of evidence, availability of witnesses, strength of witnesses, all matters not necessarily within skill set of CPA. Most appeals officers prefer a “facts and law” analysis but that approach may or may not favor taxpayer.  In the end all court case settlements involve a clearly legal analysis of the best you could do in court, the worst you could do in court and costs to get to end of legal process.
  • When there are Tax Court jurisdictional issues present: E.g. Filing of Motion to Dismiss on grounds that IRS did not mail Notice of Deficiency to “last known address” of taxpayer.
  • When a tax bankruptcy is an option: Bankruptcy Code tolls running of 240 day period during pendency of OIC and when pendency of CDP Hearing overlaps the 240 time period.[xxiv]A lawyer should address bankruptcy option before OIC is submitted or request for CDP hearing is made.
  • When tax advice is offered on or dispute involves mixed law and fact questions: Lawyers spend three years learning how to read court decisions that often are decided on procedural matters such as evidence admissibility, burden of proof, jurisdiction, etc. Thus, beyond a court’s ultimate holding there are meanings to be gleaned about the meaning and weight to be accorded the court’s ruling.  Some mixed law and fact questions:
    • Intentional disregard of rules and regulations.
    • Form over substance issues
    • Innocent spouse issues of actual knowledge and reason to know.
  • When amended or delinquent returns are to be filed: both are admissions of elements of the tax crimes of filing a false return or failure to file.  Filing late or amending may mitigate but does not erase a tax crime.  The act was negligent or criminal at the time of filing or on the due date of a return not filed timely.  In this regard, AICPA Statements on Standards for Tax Services No. 6, paragraph 11, states: “If a member believes that a taxpayer may face possible exposure to allegations of fraud or other criminal misconduct, the member should advise the taxpayer to consult with an attorney before the taxpayer takes any actions.”[xxv] The problem with this guidance is that the CPA is not qualified to determine if conduct is criminal or merely negligent.  The willful standard is substantially the same for intentional disregard and criminal non-filing but the burden of proof is greater for a criminal conviction. That determination is clearly a legal matter.[xxvi]  Moreover, in attempting to decipher the difference, the CPA will inevitably obtain non-privileged communications or documents. The safer course: Have a tax lawyer vet the client as to reasons for delinquency or amendment, especially, with regard to amendments or delinquent filings involving large amounts, numerous years, foreign elements or factors that make your back twitch uncomfortably. A so called “Kovel[xxvii] accountant” can assist lawyer in determining if crimes have been committed but should never be preparer or perform basic accounting write up work for the client. Amended or delinquent returns should be conservative and not aggressively assert positions that could be viewed as evidence of willfulness.  Above all keep in mind the words of detective Arkady Renko of Martin Cruz Smith’s sardonic, dark tale, “Stalin’s Ghost.” When asked by a construction engineer about the discovery of a mass grave at a government building site: What if the grave runs the entire court?” he replies: “That’s always the problem, isn’t it? Once you start digging, when to stop?” My Solution: Don’t start digging where you should not be digging. 
  • When FBARS are to be filed:  FBARs are not tax returns.  Filing is required by Bank Secrecy Act, not IRC, although IRS has been delegated certain administrative functions by FinCEN.  Filing FBARs involves many legal issues such as what is a financial interest in a foreign account, who is a U.S. person, who is trust beneficiary and whether conduct is willful.[xxviii]  Filing FBARs may also involve foreign law legal issues such as determining whether a foreign entity is a corporation or a trust.  These issues and even filing itself may go beyond the federal pre-emption.  The risk to CPA and client is especially high because civil and criminal sanctions are unforgiving and exceedingly harsh. 
  • Clearly legal matters:  Some matters are clearly legal and should not under any circumstance be performed by a CPA without involvement of legal counsel:
    • Drafting legal documents for others, but apparently OK, although perhaps unwise, to sell forms needed to form a corporation and complete the forms with information supplied by clients.[xxix]
    •                                                                           i.      QDRO is legal document, specifically, an order prepared for the judge to sign. If drafted by CPA at request of lawyer who submits to judge and files with court, lawyer becomes responsible for non-lawyer’s work but CPA not necessarily off hook to client.
    • Filing pleadings in court.[xxx]
    • Giving advice regarding need for drafting of living trust.[xxxi]
    • Accepting or soliciting attorneys’ fees.[xxxii]
    • Giving advice regarding another’s rights, duties or obligations or the consequences of certain actions or inaction under Florida law.[xxxiii]

CONSEQUENCES OF CROSSING THE LINE

  • Competency issue for non accounting matters under AICPA ethical rules and Florida Board of Accountancy Rules:  FL BOA Rule 61H1-22.001 Competence (General Standards)  “ (1) Professional competence. A certified public accountant shall undertake only those engagements which he or his firm can reasonably expect to complete with professional competence.
  • If there is no privilege, the CPA:
    • May be called as witness against client
    • May be sued by client for not advising of lack of privilege
    • May be required to produce personal papers of client which lose Fifth Amendment protection.
    • Will have no work product protection for tax work-papers used in return
    • May find that Client has turned on CPA who becomes potential scapegoat and target as aider and abettor.
  • Unauthorized Practice of Law (UPL): Effective October 1, 2004, practicing law without a license in Florida (including "holding out" oneself as a lawyer) is a third degree felony punishable by up to 5 years imprisonment and a fine of up to $5,000.[xxxiv] The Florida Supreme Court supervises the practice of law in Florida through its official arm, The Florida Bar.  Other sanctions include injunctive actions and indirect criminal contempt carrying a fine of up to $500 and imprisonment up to 5 months.[xxxv] Since Florida Bar UPL Committees are complaint driven a UPL action against a CPA is unlikely under normal circumstances.
  • Unable to collect fees: UPL is absolute bar to collecting fee for services. This is often defense in CPA suit to collect fees.
  • Suit for Malpractice: If CPA is practicing out of license, malpractice will be hard to defend.
  • Denial of Coverage by Malpractice Insurance Carrier: E.g., St. Paul Travelers Accountant’s Professional Liability Coverage Form insures “any accountant or accounting firm under contract with respect to ‘professional accounting services.’ [xxxvi] ‘Professional Accounting Services’ means services performed or advice given by you or on your behalf for others in the conduct of your practice as an accountant.”  This definition would clearly include typical tax preparation and tax advice but the language is open to limitation.

 WHAT TO DO TO PROTECT YOURSELF

Forrest Gump in a movie of teh same name says, “stupid is as stupid does.” People get into trouble by doing dumb things which often comes from not pausing to think carefully about what it is that they are actually doing. Follow the football option quarterback rule: Know when to keep and when to pitch the ball.  Don’t get gang-tackled. A team approach between tax lawyer and tax CPA is often appropriate yet overlooked because as Erica Jong said, “Advice is what we ask for when we already know the answer but wish we didn’t.”  Don’t wish, act on your gut feeling that will alert you to team up.

Follow 10 Common Sense Rules for CPA Tax Practice

  1. Stick to what you’ve been trained to do and to what experience has taught you how to do well.  Distinguish services you legally may perform from services you prudently should consider not performing.
  2. Don’t dupe yourself into believing that what has never happened to you or your clients will never happen.  Outliers happen regularly in a much broader non-discernable pattern. The size of the federal tax system can be quite forgiving and errors go unnoticed. But, the famous last words “I never had a problem” can quite suddenly become “Huston, we have a problem.” Think of Hurricane Andrew and the Japan Tsunami and nuclear catastrophe.
  3. Don’t assume the world can be laid out in a template. Treat each case as unique.  Every levy does not require a Request for CDP Hearing.  Look at the big picture and distinguish the symptoms from the disease.
  4. Think about what you are doing and the possible consequences of your actions.
  5. Remember that journal entries record reality; they do not create reality.
  6. Research using primary sources.  Read the IRC not the CCH Master Tax Guide.
  7. Be alert to veiled as well as clear conflicts of interest
  8. Don’t let your client make you a witness
  9. Don’t assume that a prospective client is whom he or she claims to be. 
  10. Never say or write anything to anyone you would not want repeated in court.

Tax professionals, whether lawyer or CPA, and clients should recognize the depth of unique skill and training residing in each profession.  Often the interests of the client will be best served when tax lawyer and CPA work as a team.


[i] Historical note: Actress Louise Lasser  (TV series “Mary Hartman, Mary Hartman,” film “Bananas”) was not his daughter but child of tax attorney S. Jay Lasser.

[ii] The Florida Bar v. Sperry, 140 So. 2nd 587,591 (Fla., 1962, Judgment-vacated on other grounds, 373 U.S. 379 (1963).

[iii] Footnote 2, supra.

[iv] AICPA, Committee on Terminology.

[v] Statement of the Accounting Principles Board No. 4, p. 8).

[vi] 5 U.S.C. Section 500 (c) “An individual who is duly qualified to practice as a certified public accountant in a State may represent a person before the Internal Revenue Service of the Treasury Department on filing with that agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.” See also Circular 230 Section 10.2(a)(2). See also 31 U.S.C. 330 (a) “Subject to section 500 of title 5, the Secretary of the Treasury may - (1) regulate the practice of representatives of persons before the Department of the Treasury.” Note: This right also exists before The Florida Dept. of Revenue under the Florida Administrative Procedures Act, Fla. Stat. 120.62(2).

[vii] Sperry v. State of Florida 373 U.S. 379 (Supreme Ct. 1963) involving practice before Patent office but widely viewed as equally applicable to tax practice before IRS.

[viii] Circular 230 § 10.32

 

[ix] Section 7452 and Tax Court Rule 200.

[x] AICPA, SSTS 1-7, (November 2009) effective January 1, 2010.

 

[xi] In 1997 a Wall Street Journal article (8/22/97) reported that Arthur Anderson had about 1,000 lawyers in 14 foreign countries, Ernst & Young had more than 1,170 attorneys in over 40 countries, and Price Waterhouse was affiliated with about 30 law firms with 1,500 lawyers.  In the U.S. these three firms employed then more than 2,300 lawyers.

[xii] Section 7525(a)(2). The privilege may be asserted in (A) any noncriminal tax matter before the Internal Revenue Service; and (B) any noncriminal tax proceeding in Federal court brought by or against the United States.

 

[xiii] Florida BOA Rule 61-H1-23.001: “Confidential Client Information. A certified public accountant shall not disclose any confidential information obtained in the course of proofessional engagement except with the consent of the client.”

[xiv] Cf. see United States v. Richie, CA 9, filed 1/28/11 granting IRS motion to obtain appraisal report and entire work file holding that it was error for District Court to conclude per se that entire work file was prepared in anticipation of litigation given that appraiser was hired to give testimony.

[xv] E.g., see Dalton v. Commissioner, T.C. Memo. 2008-165 involving federal and Maine law.

[xvi] Section 71(b)(1)(D).

[xvii] E.g., see James F. Moore v. Commissioner., T.C memo 2011-100 (8/16/11) where the petitioner’s obligation to make mortgage payments and reimburse former wife for her mortgage payments was held not to terminate at death of the payee spouse under the Indiana divorce decree. Thus, the payments were held not deductible as alimony.

[xviii] Fla. Stat. Chapter 738.

[xix] Fla. Stat. 738.401(5)

[xx] See e.g., U.S. v. Barczyk, No. 10-1498 (6th Cir. 8/18/11) (unpub. opin.) citing U.S. v Craft, 535 U.S. 274, 278 (2002) “(Federal Courts) look initially to state law to determine what rights the taxpayer has in the property, the Government seeks to reach  then to federal law to determine whether the taxpayer’s state-delineated rights qualify as ‘property’ or ‘rights to property’ within the compass of the federal tax lien legislation.”

[xxi] E.g., a Liechtenstein “foundation” can be classified as a trust or corporation under U.S. tax law depending on the particular facts.

[xxii] IRC Sec. 1(h)(11)(C )(i)(II)

[xxiii] Motion to Determine Tax Liability under 11 USC Section 505(a)(1).

[xxiv] 11 USC Sec. 507(a)(8)(A)(ii),(iii) and Sec. 507 (a)(8)(G).

[xxv] SSTS 1-7, supra, note 6, page 25.

[xxvi] IRM 4.10.6.2.1 (Negligence) and 4.106.2.2(Fraud) describe indictor facts. Essentially, fraud elements are more serious transgressions that would more likely meet “beyond a reasonable doubt” standard of proof.

[xxvii] Refers to accountant employed to assist counsel in rendering legal advice to client. Privilege upheld in U.S. v. Kovel 296 F.2d 918; 96 A.L.R.2d 116 (CA2 1961). Caveat: IRS is now challenging Kovel accountant privilege where accountant’s function is to perform accounting write up services or tax return preparation.  See U.S. v. Hatfield, ED NY filed 1/8/10 (Order Denying Motions to Dismiss or to Suppress Evidence (based on Kovel accountant claims of attorney client privilege).  See also, Arden Dale,“Why Your CPA Might Blab,” Wall Street Journal, June 18, 2011, page B9.

[xxviii] E.g., U.S. v McBride (D Utah, No. 2:09-cv 378-DB-BCW) discussing willful for purposes of the FBAR civil penalty which can be as much as 50% of the highest value of the unreported foreign account for each year.

[xxix] E.g., see The Florida Bar v. Fuentes, 190 So. 2d 748 (Fla. 1966). Flroida Bar v. Lister 662 So. 2d 1241 (Fla. 1995).

[xxx] E.g., Florida Bar v. Eidson, 703 So. 2d 442(Fla. 1997), involving traffic ticket.

[xxxi] E.g., Florida Bar v. American Senior Citizens Alliance, Inc. 689 So. 2d 255 (Fla. 1997).

[xxxii] Lister, supra. Note 8.

[xxxiii] Florida Bar v. Florida First Fin. Group, Inc. 695 So. 2d 275 (Fla. 1997).

[xxxiv] Fla.Stat. sec. 454.23

[xxxv] FL Rule 10-7.1(f) and 10.7-2(a), (c).

[xxxvi] Policy provided by Hall and Company of Poulsbo, WA whose help is gratefully acknowledged.

Copyright 2011 by Robert S. Steinberg, Esquire

All rights reserved

Copyright © 2018 steinbergtaxlaw.com law web design