Each representative must personally sign the Form 2848 declaration

Plain-English summary

One representative signed Part II of Form 2848 in his own name for another designated representative, and the IRS processed all three representatives onto its authorization file. Chief Counsel advised that the unsigned representative must be rejected and the Centralized Authorization File corrected. Section 601.502(c) of the Statement of Procedural Rules requires each recognized representative to provide a declaration that the person is authorized, is not suspended or disbarred, and is subject to Circular 230. Because the declaration is made under penalties of perjury about the signer’s own status, another representative cannot make it on that person’s behalf. The advice also found no Code provision or regulation authorizing a substitute signature on the Declaration of Representative.

Ruling snapshot

• Question: Can one representative sign the Form 2848 Declaration of Representative for another named representative?
• Outcome: Advice given: no, reject the representative who did not personally sign and correct the authorization file
• Key authorities: 26 C.F.R. §§ 601.502(b), 601.502(c), 601.504(a); Circular 230; Treas. Reg. § 301.6103(c)-1(e)(4)

Full text (IRS public release)

       Office of Chief Counsel
       Internal Revenue Service
       Memorandum
       Number: 201544024
       Release Date: 10/30/2015
       CC:PA:01:MEHara                         Third Party Communication: None
       POSTF-121991-15                         Date of Communication: Not Applicable

UILC: 06.04.00-00

date: September 16, 2015

 to:   Associate Area Counsel (Denver)
       (Large Business & International)
       CC:LBI

from: Pamela Fuller
Senior Technician Reviewer, Branch 2
(Procedure & Administration)
CC:PA:2

subject: Power of Attorney Question

       This memorandum responds to your request for assistance. This advice may not be
       used or cited as precedent.


                                               ISSUE

       Whether a Form 2848, Power of Attorney and Declaration of Representative, should be
       rejected as to a representative who did not personally sign the Declaration of
       Representative and should the Internal Revenue Service (Service) correct the
       Centralized Authorization File?

                                           CONCLUSION

       Yes. Section 601.502(c) of the Statement of Procedural Rules states the representative
       “must” provide the requested declaration. It is inconsistent with the purposes of the
       Declaration of Representative and impermissible for one representative to sign the
       declaration on behalf of another. The Form 2848 should be rejected as to a
       representative who did not personally sign the Declaration of Representative and the
       Service should correct the Centralized Authorization File

POSTF-121991-15 2

                                       BACKGROUND

One of the named representatives on a Form 2848 signed Part II in his own name on
behalf of the third designated representative. In signing for the third designated
representative, the named representative makes no indication that he is signing on that
other representative’s behalf. Section 5(a) of Part I of the Form 2848 does not
authorize a representative to substitute or add other representatives. The Service
processed the Form 2848 and all three designated representatives appear on the
Centralized Authorization File. The three representatives designated on the Form 2848
represent many other taxpayers on research credit refund issues. The revenue agent
was advised that the third representative who did not personally sign the Form 2848 in
the present case typically does not personally sign the Form 2848 in other cases either
because he is often out of the office and relies on one of the other designated
representatives to sign Part II of the Form 2848 on his behalf.

You have asked whether the Form 2848 should be rejected as to the third
representative who did not personally sign the Declaration of Representative and
whether the Service should correct the Central Authorization File.

                                   LAW AND ANALYSIS

The Service's conference and practice regulations require an individual appearing as an
advocate to enter an appearance by filing:

      (1) a power of attorney or tax information authorization permitting the holder to
      perform certain acts or to receive confidential tax information, and

      (2) a practice declaration, which is a declaration that the person is recognized to
      practice before the Service.1

Section 601.502(c) of the Statement of Procedural Rules provides:

“(C) Declaration of representative – A recognized representative must attach to the
power of attorney a written declaration (e.g., Part II of Form 2848) stating the following –

(1) I am not currently under suspension or disbarment from practice before the
Internal Revenue Service or other practice of my profession by any other
authority;
(2) I am aware of the regulations contained in Treasury Department Circular No. 230
(31 C.F.R., part 10), concerning the practice of attorneys, certified public
accountants, enrolled agents, enrolled actuaries, and others);

1
Statement of Procedural Rules, 26 CFR §§ 601.502(b), 601.502(c), MICHAEL A. SALTZMAN, IRS PRACTICE
AND PROCEDURE ¶ 1.09[4] (2d ed. 2012).

POSTF-121991-15 3

(3) I am authorized to represent the taxpayer(s) identified in the power of attorney;
and
(4) I am an individual described in § 601.502(b).

If an individual is unable to make such declaration, he/she may not engage in
representation of a taxpayer before the Internal Revenue Service or perform the acts
described in §§ 601.504(a)(2) through (6).”2

Part II of the Form 2848, Declaration of Representative, begins with the language:

      Under penalties of perjury, by my signature, I declare that:

             I am not currently suspended or disbarred from practice before the Internal
              Revenue Service;
             I am subject to regulations contained in Circular 230 (31 CFR, Subtitle A,
              Part 10), as amended, governing practice before the Internal Revenue
              Service;
             I am authorized to represent the taxpayer identified in Part I for the
              matter(s) specified there; …

The nature of the written declaration is for the signer to declare, under penalties of
perjury, his status and that he is subject to the provisions of Circular 230. The
declaration’s purpose is defeated by having someone sign the declaration on behalf of
another.

Moreover, there is no Internal Revenue Code provision or regulation that authorizes
someone to sign the Declaration of Representation on behalf of another.3

Although the rules regarding powers of attorney are directory rather than mandatory in
their legal effect, Ryan v. Commissioner, T.C. Memo. 1991-49, *11, the Procedural rules
such as the one involved here are for the protection and administrative convenience of
the IRS, and not the taxpayer.

Section 601.502(c) states the representative “must” provide the requested declaration.
It is inconsistent with the purposes of Declaration of Representative and impermissible
for one representative to sign the declaration on behalf of another. The Form 2848
should be rejected as to the representative who did not personally sign the Declaration
of Representative and the Service should correct the Centralized Authorization File.

Please call ---------------------- if you have any further questions.
2
See also MICHAEL A. SALTZMAN, IRS PRACTICE AND PROCEDURE ¶ 1.094 (2d ed. 2012).
3
Cf. Treas. Reg. § 301.6103(c)-1(e)(4), which provides that a Form 8821 can be executed by any person
who can obtain returns under I.R.C. § 6103 (e)(1) through (e)(5). An Attorney in fact is listed under I.R.C.
§ 6103(e)(6).