Comments Regarding Proposed Amendments to the Regulations
Governing Practice Before the Internal Revenue Service
(Title 31, Code of Federal Regulations, Subtitle A, Part 10)
Submitted by the
American Bar Association
Section of Taxation

General Comments

The Section commends the Internal Revenue Service (the "Service") for proposing amendments to the regulations governing practice before the Service (the "Proposed Amendments"). The existing regulations have not been thoroughly updated for many years. The Service has proposed many useful changes to the regulations. The Section strongly endorses the Service’s plan to thoroughly review, update and amend these regulations.

The Section has attempted through these comments to provide constructive commentary and criticism with respect to certain aspects of the Proposed Amendments. These comments do not address every aspect of the Proposed Amendments. Although the absence of a comment on any specific aspect of the Proposed Amendments does not constitute an endorsement of such a specific provision, the Section emphasizes that, subject to the specific comments below, the Proposed Amendments have our strong support. The Service is to be congratulated for undertaking this important effort.

From a procedural perspective, the Section notes that the published version of the Proposed Amendments shows the signature of the Deputy Commissioner of Internal Revenue and the Assistant Secretary (Tax Policy). In the past, changes to Circular 230, which contain Title 31 regulations, have been issued over the signature of the General Counsel of the Treasury. The Section encourages the continuation of this practice because it provides additional detachment and objectivity in the process.

One change that occurs throughout the Proposed Amendments is that the word "shall" has been replaced with the word "must" or "may." The Section assumes that this change is intended to draw a distinction between mandatory conduct in some circumstances ("must") and permissible conduct in other circumstances ("may"). If this substantive change is intended, we suggest that it would be appropriate to clarify this intent in the preamble when the Proposed Amendments are finalized.

Use of the defined term "practitioner" instead of repeatedly listing the types of professionals subject to Circular 230 is a welcome change that enhances the clarity of the regulations.