tax ethics for cpas - tcoscpatcoscpa.org/presentations/102214_1pm ethics preso.pdf · tax ethics...
TRANSCRIPT
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TAX ETHICS FOR CPAs
WHY DID I SIGN THAT RETURN? October 2014
TCOSCPA
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SCOPE OF THE SHOW
• ETHICS IN GENERAL (SOME HISTORY)
• TREASURY CIRCULAR 230
• AICPA STATEMENTS OF STANDARDS FOR TAX SERVICES (SSTS)
• CERTAIN OTHER TAX MATTERS
TCOSCPA
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TOUGH BUSY SEASON?
TCOSCPA
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WHAT ARE ETHICS?
• Ethics is a field of human inquiry into and speculation about why human beings do what they do and its foundation in “right” and “wrong” conduct.
• The word ethics comes from the Greek word “ethos” meaning “a way of life.”
• Principles of Morality?
• Codes of Conduct?
• Personal Perceptions?
TCOSCPA
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MORALS & INTEGRITY
• ETHICS – A defined standard of right & wrong, good & evil (what we believe we are supposed to do).
• MORALITY – A lived standard of right & wrong, good & evil (what we actually do).
• INTEGRITY – Sound, complete & integrated. Our ethics and morality are in synch.
TCOSCPA
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WHY DO WE NEED ETHICS?
• Rationality – reasons for actions
• Least Harm – choose the least evil
• Consistency – same action given the
same circumstances
• Impartiality – treat individuals the
same
• Openness – we must be open to a
changing view based on changing
circumstances TCOSCPA
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ETHICS HIERARCHY
• Ethics is just one Field of Philosophy
• Normative Ethics is the area applied to
the practical world – what is right and
good?
• Professional Ethics is a specific sub-
category applied to a trade, profession
or group based on their adopted code of
conduct
TCOSCPA
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PROFESSIONAL CODES
• Professional groups often adopt codes of conduct to define the ethical behavior of their members
• These codes are designed to:
–Protect the public
–Protect other members of the group
–Set minimum standards of service
TCOSCPA
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DECLINE OF ETHICS
• Recent economic fluctuations have placed enormous burdens on managers, workers and businesses
• Top management antics have given workers excuses for their own unethical behavior (Tone at the Top)
• Worker and management loyalty has declined in last several decades generational differences
TCOSCPA
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ETHICAL ROADMAP
1. The CPA must IDENTIFY the ethical issue and dilemmas in their practice
2. The CPA must UNDERSTAND the issue
3. The CPA must EVALUATE the alternatives
4. The CPA must INTERPRET the rules
5. The CPA must APPLY the rules to the situation
TCOSCPA
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ELEMENTS OF
TAXATION
TAXATION
ECONOMICS LAW SOCIAL
CONCERNS
POLITICAL
PROCESS ACCOUNTING
TCOSCPA
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ELEMENTS OF A TAX
PRACTICE
TAX
PRACTICE
RESEARCH PLANNING COMPLIANCE LITIGATION
TCOSCPA
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TAX RESEARCH
• Analyze and determine answers for tax
situations:
– Identify issues
– Determine proper authorities
– Evaluate appropriateness of authorities
– Apply authorities to specific facts
TCOSCPA
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TAX PLANNING
• Arrange to minimize tax liability:
– Tax avoidance: Legitimate
– Tax evasion: Illegal (can you say JAIL?)
– Open transactions – plan for pending
(future) transactions
– Closed transactions – minimize liability for
past transactions
TCOSCPA
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TAX COMPLIANCE
• Gathering, evaluating and classifying
information for:
– Filing tax returns (income, payroll,
franchise, sales & use, and other taxes)
– Representing clients before the IRS during
tax return audits
TCOSCPA
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TAX LITIGATION
• Settling disputes with the IRS or other
tax authorities in court
• Attorneys usually handle litigation
beyond initial appeal of an IRS audit
TCOSCPA
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TAX ETHICAL GUIDELINES
Circular 230 (federal returns)
IRC §§ 6694 et al (preparer penalties)
Statements on Standards for Tax
Services (all tax returns)
AICPA Code of Professional Conduct
(Due Care)
Sarbanes Oxley Act
TCOSCPA 17
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230 COMPLIANCE
vs.
SSTS ETHICS
• CIRCULAR 230 IS A FEDERALLY MANDATED COMPLIANCE STANDARD
• STATEMENTS ON STANDARDS FOR TAX SERVICES IS A PROFESSIONAL ETHICAL STANDARD
• BOTH IMPACT THE CPA’s SERVICE TO THEIR CLIENTS
TCOSCPA
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COMPLIANCE vs. ETHICS COMPLIANCE ETHICS
Letter of the Law Spirit of the Law
Doing things Right Doing the Right Things
Doing what you Must Doing all you Should
Rules Values
Policies Codes
Conformance Choices
Concerned about Law Caring for People TCOSCPA
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230 COMPLIANCE
• The new rules are expected to improve
compliance with tax laws and
regulations by preparers
• Enhanced penalties and enforcement
• Increased cost for services and advice
to clients
• Additional documentation for proof of
compliance
TCOSCPA
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WHAT IS TREASURY
CIRCULAR 230?
• This is the Treasury Regulation that
governs the conduct of Individuals
Eligible to Practice before the Internal
Revenue Service
• Recently rewritten and strengthened by
the Treasury Department
• Effective Date June 21, 2005
TCOSCPA
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WHAT IS PRACTICE
BEFORE THE IRS?
• Involves all matters “relating to a
taxpayer’s rights, privileges or
liabilities under laws or regulations”
including but not limited to preparing
and filing documents, corresponding
and communicating with the IRS and
representing a client at conferences,
hearings and meetings.
TCOSCPA
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WHAT IS PRACTICE
BEFORE THE IRS?
• An individual who may practice in front
of the IRS pursuant to Section 10.7(c),
such as a tax return preparer, will be
subject to the Circular 230 rules if they
accept the representation of the
taxpayer before the IRS
TCOSCPA
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230 – WHO MAY PRACTICE?
• Attorneys
• CPAs
• Enrolled Agents
• Enrolled Actuaries
• Others as defined by the regulations
• Government Officers & Employees
• State Officers & Employees
TCOSCPA
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230 – ENROLLMENT RULES
• Former IRS tax law administration employees
(may be limited or unlimited)
• IRS issues the enrollment cards
• Enrollment must be renewed
• IRS establishes CPE rules
– Effective 03/31/04 – 16 hours each
calendar year
– Effective 04/01/07 – minimum of 72 hours
of CPE during 3 year reporting period with
16 hours including 2 hours of ethics each
year TCOSCPA
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230 – ENROLLMENT BY
EXAM
• IRS grants EA designation to those who
pass a 4 part exam offered annually
• EAs are subject to specific continuing
education and registration & reporting
requirements
TCOSCPA
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230 – LIMITED PRACTICE
• Can represent a family member
• Can represent their employer
• Can be a general partner and represent
a partnership
• Can be an officer or full-time employee
and represent a corporation
• Can represent a taxpayer for a return
they have prepared for that year
TCOSCPA
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230 – WHO
ADMINISTRATES?
• IRS Office of Professional
Responsibility (OPR) sets,
communicates and enforces the
standards among tax practitioners:
– Standards of competence
– Standards of integrity
– Standards of conduct
TCOSCPA
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230 – CATEGORIES OF
MISCONDUCT
OPR may discipline a practitioner for:
• Misconduct while representing a
taxpayer
• Misconduct related to the practitioner’s
own return
• Giving a false opinion (recklessly or
through gross incompetence)
• Misconduct not directly involving IRS
representation TCOSCPA
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PRIMARY CHANGES TO
TREASURY CIRCULAR 230?
• Covered Opinions
• Other Written Tax Advice
• Best Practices
TCOSCPA
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CIRCULAR 230 POSITIONS
• More Likely Than Not – greater than a
50% chance of being upheld
• Realistic Possibility - greater than a
33% chance of being upheld
• Reasonable Basis – a 10% to 25%
likelihood of being upheld
• Positions cannot be “frivolous” or
“merely arguable” about 0% chance
TCOSCPA
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WHAT IS A COVERED
OPINION? - 1
• Written tax advice that concerns one or
more “federal tax issues” arising from:
– Listed Transactions (or similar)
– Transactions with the “Principal
Purpose” of tax avoidance or evasion
– Transactions with the “Significant
Purpose” of tax avoidance or evasion
TCOSCPA
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WHAT IS A COVERED
OPINION? - 2
• Listed Transactions
– Identified by the IRS as patently abusive
tax avoidance transactions such as:
• Abusive lease stripping
• Contingent liability and basis-shifting
transactions
• Schemes using Roth IRAs to shelter business
income
TCOSCPA
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WHAT IS A COVERED
OPINION? - 3
• Principal purpose of tax avoidance or evasion
– The benefits of the tax avoidance exceed any other benefit or purpose
– The proposed transaction will claim a tax benefit in a manner not intended by the Tax Code and Congress
• KPMG admitted guilt and several other major firms sold similar shelters
TCOSCPA
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KPMG SETTLEMENT
• Between 1996 and 2003 KPMG was
designing and marketing illegal tax
shelters
• These were called FLIP, OPIS, BLIPS
and SOS
• In 2005 KPMG admitted criminal
wrongdoing and paid $456 million in
fines, penalties and restitution
TCOSCPA 35
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REQUIREMENTS FOR A
COVERED OPINION-1 • The facts must be laid bare
• The practitioner must come to a conclusion about the taxpayer prevailing
• Limited scope opinions must include IRS required language
• Certain advice may qualify as “other written advice” with more flexible, less detailed standards
TCOSCPA
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“LEGEND OUT” LANGUAGE
PricewaterhouseCoopers:
This document was not intended or
written to be used, and it cannot be
used, for the purpose of avoiding tax
penalties that may be imposed on the
taxpayer.
TCOSCPA
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“LEGEND OUT” LANGUAGE
Ernst & Young:
Any U.S. tax advice contained in the body
of this e-mail was not intended or
written to be used, and cannot be used,
by the recipient for the purpose of
avoiding penalties that may be imposed
under the Internal Revenue Code or
applicable state or local tax law
provisions. TCOSCPA
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IMPLICATIONS OF A
COVERED OPINION?
• Practitioners feel that the cost may be
disproportionate to the benefit for their
client/taxpayers
• Practitioners are including “legends”
on all written communications – letters,
emails, faxes that include tax advice
• Oral communications are not covered
by these regs
TCOSCPA
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BEST PRACTICES
• Under 230, Practitioners should:
– Communicate clearly with clients
– Know the client’s use for the advice
– Establish the facts in the situation
– Reach conclusions that are supported by
the law and the facts
– Advise clients about the importance of the
conclusions they reach
– Act fairly and with integrity with the IRS
TCOSCPA
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230 OTHER MATTERS
• The practitioner is expected to exercise
due diligence when preparing,
approving and filing returns
• A practitioner may not charge an
“unconscionable fee” for
representation before the IRS
• Charging contingent fees is limited by
Circular 230
• No conflict of interest allowed
TCOSCPA
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230 OTHER MATTERS-1
• Practitioners who supervise a tax
department at a firm must take
reasonable steps to insure that the firm
has procedures in place to monitor
compliance by all members, associates
and employees
• Failure to do so could result in IRS
sanctions on the supervisor
TCOSCPA
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230 OTHER MATTERS-2
• Solicitations and Advertising;
– Most media is permissible
– Cannot contain false, fraudulent, coercive
or unfair statements
– Must comply with standards of other
authorities:
• ABA
• AICPA
• State CPA Societies
TCOSCPA
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SEC 6694 REGS
• Monetary penalties for tax understatement
may be assessed by the IRS:
• 6694(a) – unreasonable position – the
greater of $1,000 or 50% of the income
derived by the preparer
• 6694(b) – willful or reckless conduct – the
greater of $5,000 or 50% of the income
derived by the preparer
TCOSCPA 44
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SEC 7216 REGS
• Final Regs issued December 2012
• Prohibits unauthorized disclosure of tax
return information
• Client must sign a consent to disclose
information
• Violations subject to fine or prison
• Review before selling your tax practice
TCOSCPA 45
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AND DON’T FORGET IT!
TCOSCPA
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AICPA CODE OF
PROFESSIONAL CONDUCT
• Governs all AICPA members
• Purpose is to provide:
– An enforceable comprehensive code of
ethical and professional conduct
– A guide for members in answering
complex questions for clients
– Reasonable assurance for the public
TCOSCPA
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AICPA CODE OF
PROFESSIONAL CONDUCT
• Rules apply to CPAs, their employees,
partners, shareholders and others
acting on behalf of CPAs
• Guidance is provided by:
– Interpretations of the rules
– Ethics rulings
• Members must justify departure from
the ethics rulings
TCOSCPA
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AICPA STATEMENTS OF
STANDARDS FOR TAX
SERVICES (SSTS)
• These statements were issued in 2000 &
have their origin in the Statements on
Responsibility in Tax Practice issued
between 1964 and 1991 by the AICPA
• They give CPAs a “body of advisory
opinions on good tax practice”
• They are restricted to AICPA members
• They apply to all tax returns (not just
federal returns like Circular 230) TCOSCPA
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SSTS TOPICS – 1
• No. 1 – Tax Return Positions
• No. 2 – Answers to Questions on
Returns
• No. 3 – Certain Procedural Aspects of
Preparing Returns
TCOSCPA
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SSTS TOPICS - 2
• No. 4 – Use of Estimates
• No. 5 – Departure from a Position
Previously Concluded in an
Administrative Proceeding or Court
Decision
TCOSCPA
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SSTS TOPICS - 3
• No. 6 – Knowledge of Error: Return
Preparation and Administrative
Proceedings
• No. 7 – Form and Content of Advice to
Taxpayers
TCOSCPA
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STILL AWAKE?
TCOSCPA
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FASB Interpretation No.
48
• FIN 48 was issued July 13, 2006, and is effective for all entities - taxable as well as tax-exempt - that issue GAAP financial statements for fiscal years beginning after Dec. 15, 2006.
• FIN 48 is expected to increase consistency and transparency in financial statements with respect to tax matters.
TCOSCPA
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FASB Interpretation No.
48
• There is a difference between tax positions that can be taken on a return and those contemplated in financial statements reporting under FIN 48 (1 in 3 vs. better than 1 in 2)
• Thus, there is a FIN 48 gap (or a gamble) in taking aggressive positions
TCOSCPA
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56
SARBANES-OXLEY AND
TAXATION
• Auditors may not provide certain
services to audit clients
• Tax services may be provided if
approved in advance by the audit
committee
• Tax services cannot be provided to
management executives in a financial
oversight role
• No contingent fees for tax services TCOSCPA
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ETHICS OF OUTSOURCING
• Overseas preparation of income tax
returns raises ethical issues
• India claims to process returns for half
the cost of U.S. preparers
• Ethics Issues:
– Inform the client of the arrangement?
– Keep information confidential?
– Supervised by a U.S. CPA?
TCOSCPA
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AICPA on OUTSOURCING
• Issued two new ethics rulings effective
July 1, 2005
– Ethics Ruling 112 – Integrity and
Objectivity – member must be honest and
candid with client
– Ethics Ruling 12 – General Standards and
Compliance with Standards – member is
responsible for the third-party services
and must plan and supervise the services
TCOSCPA
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OUTSOURCING DISCLOSURE
The firm may from time to time, and depending on the circumstances, use third-party service providers in serving your account. We may share confidential information about you with these service providers, but remain committed to maintaining the confidentiality and security of your information. Accordingly, we maintain internal policies, procedures and safeguards to protect the confidentiality of your personal information.
Continued on the next slide TCOSCPA
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OUTSOURCING DISCLOSURE
In addition, we will secure confidentiality agreements with all service providers to maintain the confidentiality of your information and we will take reasonable precautions to determine that they have appropriate procedures in place to prevent the unauthorized release of your confidential information to others. In the event that we are unable to secure an appropriate confidentiality agreement, you will be asked to provide your consent prior to the sharing of your confidential information with the third-party service provider. Furthermore, the firm will remain responsible for the work provided by any such third-party service providers.
TCOSCPA
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ETHICS COMMITTEE
• Company or individual mails (or emails) a
complaint to the AICPA or OSCPA
• A 30 day letter is sent to the CPA and the
OSCPA and AICPA cooperate using the
JEEP (Joint Ethics Enforcement Program)
to monitor the issue
• The CPA responds to the complaint after
referring to the Rules of Conduct
TCOSCPA
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ETHICS COMMITTEE
• The CPA reviews their rights under the
JEEP process
• The CPA provides a substantive response
to each question
• The CPA asks for clarification if they don’t
understand the complaint
• Failure to comply with deadlines may be a
violation of the Code of Conduct
TCOSCPA
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ETHICS COMMITTEE
• An investigation may be initiated by the
AICPA if the issue is not resolved by the
response from the CPA
TCOSCPA
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MARK TWAIN WISDOM Always do right – This
will gratify some and
astonish the rest
If you tell the truth,
you don’t have to
remember anything
TCOSCPA
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QUESTIONS OR COMMENTS
• I would like to entertain your questions
• I would also like your comments on the topic as time allows
• Thank you for your time and attention
• My thanks to the Tulsa Chapter for the opportunity to speak
TCOSCPA