When tax advisors fail to follow the rules, it tarnishes our profession. The bad behavior may subject them to discipline by the body governing their practice, the Office of Professional Responsibility and/or the criminal justice system.
Discipline may come in many flavors, depending upon the severity of the misconduct. Sanctions generally consist of censureship, suspension, disbarment, financial penalties and imprisonment.
The stakes are high. Tax advisors and their firms need to know and follow the rules, and implement systems to ensure compliance by the members of their firms.
Effective June 30, 2005, Treasury issued final regulations amending Circular 230 (“2005 Regulations”). The 2005 Regulations were specifically aimed at two goals:
- Deterring taxpayers from engaging in abusive transactions by limited or eliminating their ability to avoid penalties via inappropriate reliance on advice of tax advisors; and
- Preventing unscrupulous tax advisors and promoters from marketing abusive transactions and tax products to taxpayers based upon opinions that failed to adequately consider the law and the facts.
After the 2005 Regulations were issued, Treasury continued tinkering with the regulations to refine its approach, keenly keeping focus on these two goals. Accordingly, we have seen numerous refinements to Circular 230 in the past nine (9) years, including:
- Amendments to the 2005 Regulations published on May 19, 2005;
- Broadened authority granted by lawmakers to Treasury to expand standards relating to written advice on October 22, 2004, with the passage of the American Jobs Creation Act of 2004 (“AJCA”). In addition, the AJCA gave Treasury authority to impose monetary penalties against tax advisors who violate Circular 230;
- Amendments to Circular 230 published on February 6, 2006, in proposed form, adopting, among other things, monetary penalties for Circular 230 noncompliance. These regulations were finalized, effective September 26, 2007; and
- Amendments to the written advice provisions of Circular 230 published on October 1, 2012 in proposed form. These amendments were finalized on June 14, 2014.
Until 2005, Circular 230 was untouched for almost two decades. An enormous storm awoke Treasury from a deep sleep, causing a loud roar to permeate among lawmakers, the IRS, Treasury and the tax community. The result was the adoption of rules aimed at achieving the two goals set forth above.
The ultimate cause of the storm was the broad sweeping allegations of fraud and deception in the accounting and law professions which we saw in the early part of this millennium, including scandals involving ENRON, Global Crossing, imClone, WorldCom, Qwest, Tyco, HealthSouth and Aldelphia. Further feeding the storm were the black clouds created by the collapse of Arthur Andersen and the financial penalties assessed against and the practice limitations imposed upon KPMG. Last, but certainly not least, the investigations and lawsuits against tax advisors (and their firms) for developing and marketing abusive tax shelters, including the investigations and lawsuits leading to the demise of the large law firm of Jenkens & Gilchrist (“Jenkens”), added to these dark times.
On June 19, 2014, San Francisco tax attorney, James P. Kleier, entered into a plea agreement with the government for his failure to file tax returns and pay income taxes. Per the agreement, Mr. Kleier will be imprisoned at the Atwater Federal Corrections Institution for 12 months commencing September 18, 2014. Following release from prison, he will be subject to a 1-year supervised parole. In addition, Mr. Kleier is required to pay the IRS a total $650,993.
Mr. Kleier was a partner in the San Francisco law office of Preston Gates & Ellis LLP (now known as K&L Gates LLP) from 1999 to 2005. Thereafter, he practiced law in the San Francisco office of Reed Smith LLP. Both of these organizations are large prestigious international law firms. According to the complaint filed by the government in the U.S. District for the Northern District of California, tax attorney Kleier failed to report income of more than $1.3 million while practicing law at these firms. Specifically, he earned $624,923 in 2008; $476,088 in 2009; and $200,734 in 2010. Nevertheless, he failed to file tax returns for these years and pay the taxes due and owing.
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Larry J. Brant
Larry J. Brant is a Shareholder and the Chair of the Tax & Benefits practice group at Foster Garvey, a law firm based out of the Pacific Northwest, with offices in Seattle, Washington; Portland, Oregon; Washington, D.C.; New York, New York, Spokane, Washington; and Beijing, China. Mr. Brant practices in the Portland office. His practice focuses on tax, tax controversy and transactions. Mr. Brant is a past Chair of the Oregon State Bar Taxation Section. He was the long-term Chair of the Oregon Tax Institute, and is currently a member of the Board of Directors of the Portland Tax Forum. Mr. Brant has served as an adjunct professor, teaching corporate taxation, at Northwestern School of Law, Lewis and Clark College. He is an Expert Contributor to Thomson Reuters Checkpoint Catalyst. Mr. Brant is a Fellow in the American College of Tax Counsel. He publishes articles on numerous income tax issues, including Taxation of S Corporations, Reasonable Compensation, Circular 230, Worker Classification, IRC § 1031 Exchanges, Choice of Entity, Entity Tax Classification, and State and Local Taxation. Mr. Brant is a frequent lecturer at local, regional and national tax and business conferences for CPAs and attorneys. He was the 2015 Recipient of the Oregon State Bar Tax Section Award of Merit.