By Thomas P. Ochsenschlager, CPA, J.D.
The District Court for the District of Columbia has held in Loving v. Internal Revenue Service that the IRS does not have the legal authority to impose its registration, fees, continuing education and competency testing requirements upon unlicensed tax return preparers. The decision does not affect the IRS’s authority over attorneys, CPAs, enrolled agents (EAs), enrolled retirement plan agents or enrolled actuaries.
The district court has now clarified that the plaintiffs in the Loving case did not challenge the IRS’ requirement that all tax preparers must obtain a preparer tax identification number (PTIN), but reiterated that the IRS cannot charge a fee for the PTIN.
The IRS ceased issuing PTINs for a short period, but reopened its registration website on Saturday, February 2nd. The IRS has also announced that it will continue to offer education and testing for unlicensed preparers, but cannot mandate or charge for it. The IRS will appeal the court’s ruling shortly.
It should be noted that, in 2011, the Eleventh Circuit in the Brannen III case (cert denied by Supreme Court) affirmed a lower court’s decision that the IRS had the authority to charge an annual fee for a PTIN. Brannen III involved an individual who was an attorney and a CPA, but the language of the case broadly implied the IRS had such authority over all return preparers.