NY Enrolled Agent - Form 12153

[Gretel]

NYEA - I am uncertain if I can sign Form 12153 for my client if I have POA for all tax years in question. I am also uncertain if a separate POA is required that states that I am authorized to request and handle CAP and CDP hearings.

Would you please shed some clarity on this? Thank you so much.

[Koss]

Form 12153

I'm definitely not NY Enrolled Agent, but I'll take a crack at this one...

The instructions for Form 12153, right above the signature line, read as follows:

I understand the CDP hearing and any subsequent judicial review will suspend the statutory
period of limitations for collection action. I also understand my representative or I must sign and date this request before the IRS Office of Appeals can accept it. [Emphasis supplied]

The instructions for Form 2848 read as follows:

This power of attorney authorizes the representative to perform any and all acts you can perform, such as signing consents extending the time to assess tax, recording the interview, or executing waivers agreeing to a tax adjustment. Also, you may authorize your representative to substitute another representative or delegate authority to another representative by adding this authority in the space provided on line 5. However, authorizing someone as your power of attorney does not relieve you of your tax obligations.

My answer to your question is:

You don't need a separate POA. You can sign Form 12153 on behalf of your client. You do so by signing the space labeled as the Authorized Representative's Signature. You should leave the space for the taxpayer's signature blank. The form requires your signature OR the taxpayer's signature. It does not require both.

You should attach a copy of your current POA, even if it is already on file in the CAF.

My answer assumes that your current POA applies to the tax year in question, and that your current POA has been signed by both spouses if it was a joint return. My answer also assumes that you are a Cir. 230 practitioner, i.e., an enrolled agent, a CPA, or an attorney.

I do think you have an ethical obligation to inform your client, before you submit the form, about the suspension of the time limit for collections. But if it is clearly to your client's advantage to request the hearing, notwithstanding the suspension of time, then this may not be a significant issue.

You can certainly check the box that says "I request my CDP hearing be held with my authorized representative." But for this type of hearing, you may well want the client to be present, even if his presence is not required. The client's live testimony may be very important, depending on what you are trying to accomplish.

Be aware that these hearings can be conducted by phone in some cases. You may or may not have a choice between an in-person or telephone hearing.

BMK

[New York Enrolled Agent]

Gretel

Burton gave you a detailed answer. If you have a valid POA, you stand in the shoes of the taxpayer - you can sign the form requesting the CDP.

This may be overkill but here's a snip from the IRM.

Taxpayers generally use Form 12153, Request for Collection Due Process or Equivalent Hearing, to request the hearing. This form is included with the CDP notice. If this form is not used, the taxpayer may submit a written request for a CDP hearing signed by the taxpayer or authorized taxpayer representative.

The written request for a hearing must be dated and must include the following information:

The taxpayer's name, address, daytime telephone number (if any), and taxpayer identification number (SSN, ITIN, or EIN).

The type of tax involved.

The tax period(s) at issue.

A statement that the taxpayer requests a hearing concerning the proposed levy or in the case of post levy CDP requests, the actual levy action, or the filing of the NFTL.

The reason(s) why the taxpayer disagrees with the action.

Note:
The Service can disregard any portion of a hearing request that is based on a position identified as frivolous by the IRS in a published list or reflects a desire to delay or impede the administration of federal tax laws. Under these circumstances the taxpayer may be denied a hearing. If the entire hearing request meets one or both of these criteria the taxpayer may be denied a hearing entirely. Refer to IRM 5.1.9.3.16, Hearing Request with Frivolous or Impeding Issued for procedures for disregarding portions of hearing requests or denying hearing requests altogether. For a list of positions identified by the IRS as frivolous, see Notice 2008-14 or any successor guidance.


The signature of the taxpayer or the taxpayer's authorized representative.

[Gretel]

Thank you so much, guys. I looked at the instructions for both forms but not on the signature line. I rather deal with overkill than missing something. Thanks again.

Burton, all your assumptions are correct.