IRS Lacks Authority to Regulate Preparation, Filing of Refund Claims

A. Process for Preparing and Filing Refund Claims

Taxpayers proceed through three stages of interaction with the IRS: assessment and collection, examination, and appeals. United States v. Galletti, 541 U.S. 114, 122 (2004). "Assessment" refers to the "calculation of a recording of a tax liability" following a taxpayer's submission of his return. Id. Although the IRS accepts most taxpayers' returns as filed, it selects some returns for examination, or audit. Id.; 26 C.F.R. § 601.103(b). During the examination stage, which may take place by mail or in-person, "a taxpayer may be represented before the examiner by an attorney, certified public accountant, or other representative." 26 C.F.R. § 601.105(b)(1). After the examination, the IRS may determine that the taxpayer owes additional tax or that the IRS owes a refund to the taxpayer. Finally, if the taxpayer and IRS disagree over the IRS's disposition, the taxpayer may request an in-person conference with the IRS's appeals office, during which he may designate a representative to act on his behalf. 26 C.F.R. §§ 601.103(b), (c)(1)-(3); 601.106(c). A taxpayer may then seek review in court. 26 C.F.R. § 601.103(c).

This case concerns the preparation and filing of the so-called "Ordinary Refund Claim," a procedure that a taxpayer may undertake if he determines that he has overpaid his taxes. A taxpayer may file this type of claim after he has filed his tax return or during the course of an examination, but prior to filing suit in court for a refund. I.R.C. § 7422(a). In his claim, a taxpayer must detail the exact basis for the refund. Treas. Reg. 301.6402-2(b)(1). Should the IRS disallow his claim, the taxpayer may appeal. I.R.C. § 6532(a). Particularly if the refund claim is complex, a taxpayer may elect to hire a CPA to help prepare and file his claim.

Before proceeding any further, the Court must explain exactly what actions constitute "preparing and filing" an Ordinary Refund Claim. As Ridgely's counsel made clear during the hearing on the parties' summary judgment motions, a CPA may assist a taxpayer in preparing and filing a refund claim and, in doing so, would not be legally representing the taxpayer until the IRS responds to the claim and the CPA submits a power-of-attorney form to the IRS. Hearing Tr. at 14. Thus, what Ridgley challenges here is the IRS's proclaimed authority to regulate fee arrangements entered into by CPAs for preparing and filing Ordinary Refund Claims before the commencement of any adversarial proceedings with the IRS or any formal legal representation by the CPA.

B. Statutory and Regulatory Framework

This case concerns the breadth of the IRS's authority to regulate CPAs, which is found in 31 U.S.C. § 330, a statute originally enacted in 1884. Pursuant to Section 330, the Treasury Secretary has authority to regulate "persons" who practice before the Treasury Department. In relevant part, Section 330 states:

In 2007, after a period of notice and comment, the IRS promulgated regulations prohibiting the charging of contingent fees except in limited circumstances. Specifically, Section 10.27(a)-(b) of Circular 230 provides:

C. Factual and Procedural History

The IRS promulgated the contingent fee restrictions at issue in this case out of concern about auditor independence. IRS Reply [Dkt. No. 40] at 15 (arguing that CPA practice of "taking lucrative contingent fees from companies whose books they review . . . jeopardizes auditor independence because it leads accountants and their clients to share financial interests" (internal quotation marks omitted)). The plaintiff in this case, Gerald Ridgely, is a practicing CPA. Amend. Compl. [Dkt. No. 31] ¶ 10. Required to comply with 10.27's restrictions on contingent fee arrangements, Ridgely argues that he has suffered a "loss of clients and significant revenue," Ridgely Reply [Dkt. No. 37] at 23, and that his "ability to represent and assist clients in the preparation and filing of Ordinary Refund Claims and to practice before the IRS has been severely restricted," Amend. Compl. ¶ 26. Seeking injunctive and declaratory relief, Ridgely sued the Secretary of the Treasury and the Commissioner of the IRS under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. This Court previously determined that Ridgely has standing. Mar. 29, 2013 Order [Dkt. No. 26].² Both parties now move for summary judgment.

The court reviews APA claims under the familiar two-step Chevron standard. Ass'n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 441 (D.C. Cir. 2012) (citing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)). The court first uses the traditional tools of statutory interpretation to determine "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. "[I]f the statute is silent or ambiguous with respect to the specific issue," the court proceeds to step two, asking whether the agency's interpretation "is based on a permissible construction of the statute." Id. at 843. The agency's construction at step two is permissible "unless it is arbitrary or capricious in substance, or manifestly contrary to the statute." Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 711 (2011) (citation omitted).

In determining whether statutory language is ambiguous, the Court must examine "the language [of the statute] itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Armed with the traditional tools of statutory interpretation -- "text, structure, purpose, and legislative history," Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001) -- the Court's task is to determine "whether the agency has stayed within the bounds of its statutory authority." City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013) (emphasis omitted).

This Court, however, is not the first to venture down this particular rabbit hole. Earlier this year, in Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014), the D.C. Circuit grappled with the question of "whether the IRS's authority to 'regulate the practice of representatives of persons before the Department of the Treasury' encompasses authority to regulate tax-return preparers," Loving, 742 F.3d at 1016 (emphasis added), whom the Court in turn defined as persons who"'prepare[ ] for compensation, or who employ[ ] one or more persons to prepare for compensation, all or a substantial portion of any return of tax or any claim for refund of tax under the Internal Revenue Code,'" id. (quoting 26 C.F.R. § 301.7701-15(a)). The Court held that the text, history, structure, and context of Section 330 "foreclose[d] and render[ed] unreasonable" the IRS's interpretation of Section 330. Id. at 1022. In other words, the IRS's interpretation failed at both Chevron step 1 and Chevron step 2. Id.

As the IRS is quick to point out, though, Loving involved a different set of plaintiffs -- non-CPA tax-return preparers -- and different provisions of Circular 230 -- Sections 10.3-10.6, which imposed requirements to pay a fee, pass a qualifying exam, and complete continuing education classes. See Loving, 742 F.3d at 1015. But Loving also expressly addressed two key questions that the Court faces here: who are "representatives" and what is "practice" under Section 330? In the Court's view, Loving is controlling precedent that must guide the Court's examination of Section 330's text, context, and history with respect to the claims at issue in this case.

A. Text of Section 330

The plain text of Section 330(a) limits the regulatory authority of the Secretary of the Treasury to "the practice of representatives of persons before the Department of the Treasury." 31 U.S.C. 330(a)(1). As the Loving court explained, two terms in this provision are key: "representative" and "practice." To fall under Section 330's purview, the regulated conduct must be "practice" and must be undertaken by a "representative."

As to the meaning of the term "representative," Loving is clear: a "representative" is traditionally one "with authority to bind others." 742 F.3d at 1016. Tax-return preparers neither "possess legal authority to act on the taxpayer's behalf" nor can they "legally bind the taxpayer by acting on the taxpayer's behalf." Id. at 1017. They are, as a result, "not agents." Id. As mentioned earlier, the Loving court defined "tax return preparers" to expressly include those preparing refund claims, but even if the court's holding fails to directly cover CPAs preparing and filing Ordinary Refund Claims, the court's reasoning applies straight forwardly. CPAs preparing and filing such claims before possessing any power of attorney possesses no "legal authority to act on behalf of taxpayers." Id. at 1017. In Loving's words, these individuals merely "assist[ ]" the taxpayer. Id. Thus, Section 330's use of the term "representative" excludes refund claim preparers, just as it did tax-return preparers in Loving.

Loving also sheds light on the meaning of the term "practice" in Section 330. As the Court explained, "practice . . . before the Department of the Treasury," like practice before any agency or court, "ordinarily refers to practice during an investigation, adversarial hearing, or other adjudicative proceeding." Id. at 1018. The process of filing an Ordinary Refund Claim -- again, before any back-and-forth with the IRS -- is similar to the process of filing a tax return in that both take place prior to any type of adversarial assessment of the taxpayer's liability. If a "tax-return preparer do[es] not practice before the IRS when [he] simply assist[s] in the preparation of someone else's tax return," then a CPA hardly "practices" before the IRS when he simply prepares and files a taxpayer's refund claim, before being designated as the taxpayer's representative and before the commencement of an audit or appeal. Id. at 1018. Following Loving, the Court therefore concludes that the plain text of Section 330 excludes preparers and filers of Ordinary Refund Claims from the ambit of the IRS's regulatory authority.

B. Context of Section 330

Like its plain text, Section 330's broader statutory context leads the Court to conclude that the IRS's regulatory authority does not extend to those preparing and filing Ordinary Refund Claims. "It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Roberts v. Sea-Land Servs, Inc., 132 S. Ct. 1350, 1357 (2012) (internal quotation marks omitted). But heeding the IRS's interpretation of Section 330 would "effectively gut" Congress's "carefully articulated" framework for regulating those preparing and filing tax returns and tax refund claims. Loving, 742 F.3d at 1020. This framework includes a number of statutes that deal particularly with individuals preparing tax returns or refund claims. To start, 26 U.S.C. § 7701 expressly defines "tax return preparer" to include individuals who prepare tax returns or tax refund claims. 26 U.S.C. § 7701(a)(36). Beyond grouping tax-return preparers and tax-refund preparers in the same statutory definition, Congress enacted a comprehensive scheme of penalties to curb the potential for abuse in the preparation and filing of both original returns and refund claims. See 26 U.S.C. §§ 6662, 6663, 6676, 6694, 6701, 7206, and 7207 (penalizing filing frivolous claims for refunds, inaccurate reporting, fraud, understatements due to unreasonable positions, willful or reckless conduct, aiding and abetting understatements of tax liabilities, willfully aiding or assisting in the preparation of fraudulent or false claims, and willfully delivering fraudulent or false returns to the IRS). These provisions reveal that Congress conceived of tax-return preparation and tax-refund preparation as similar activities that qualitatively differ from the "practice" of presenting or adjudicating cases. But under the IRS's view, these specific provisions would serve no purpose, for Section 330 itself would have given the IRS liberal authority to impose various penalties on tax-return preparers who behave unethically. See Loving, 742 F.3d at 1020. The definition of "tax return preparer" and the need to avoid surplus age support the conclusion that Congress differentiated between the preparation and filing of refund claims on the one hand and their subsequent adjudication on the other. Congress clearly intended to allow the IRS to regulate these two categories of activity differently, and the grant of authority in Section 330 is limited to the latter.

C. History of Section 330

The history of Section 330 also indicates that the statute's scope never encompassed the mere preparation and filing of refund claims. The original language of Section 330 stated:

D. IRS's Counter-Arguments

The IRS offers only one non-conclusory argument in response to the Court's statutory interpretation as guided by Loving: that because Ridgely is a CPA, he "is a representative who practices before the Department and is therefore subject to the terms of Circular 230." IRS Mot. [Dkt. No. 35-1] at 25. In other words, according to the IRS, it has authority to regulate all actions of CPAs who -- at some point -- "practice" before it, regardless of "whether they're acting in a representational or non representational capacity." Hearing Tr. at 26. This argument, however, poses three problems. First, it is inconsistent with the use of the word "practice" in Section 330. The statute does not regulate "practitioners" generally; it regulates a specific kind of activity they may undertake: "practice . . . before the [IRS]." 31 U.S.C. § 330(a)(1). Second, the IRS's position would read the word "representative" out of Section 330. As Loving made clear, Section 330 only applies to individuals when they represent taxpayers. Third, adhering to the IRS's position would lead to absurd results. According to the IRS, it could broadly regulate the actions of CPAs no matter what they were doing -- even if their conduct was nowhere close to "practicing" before IRS -- simply because, say, the CPAs "practiced" before the IRS once a year. Meanwhile, the IRS would impose no contingent fee restrictions on the preparation and filing of Ordinary Refund Claims by non-CPAs and those who never "practice" before the IRS. Nothing in the statutory text (or, for that matter, the context and history of Section 330) gives the IRS this kind of authority over CPAs specifically. Further, nothing in Section 10.27 indicates that the IRS was concerned with CPA conduct in particular instead of with the ethics of fee arrangements for preparation and filing generally. The Court therefore disagrees with the IRS that simply because CPAs may at times practice before the IRS, the IRS has authority to regulate their conduct without limit.

The IRS's remaining arguments have been foreclosed by Loving. For example, the IRS argues that it has "inherent authority" to regulate those that practice before it. IRS Mot. [Dkt. No. 35] at 10. But as Loving held, the IRS's regulatory authority is expressly circumscribed by Section 330. 742 F.3d at 1014-16. The IRS also argued for the first time at the hearing that Section 330(d) broadly authorizes the IRS to regulate those preparing and filing Ordinary Refund Claims regardless of the capacity in which they act. Hearing Tr. at 26. But the IRS never explained how Section 330(d), which concerns "the rendering of written advice," encompasses preparing or filing refund claims prior to formal legal representation. 31 U.S.C. § 330(d). If "written advice" included such acts, it would also include preparing and filing tax returns, a possibility foreclosed by Loving. In any event, as the Court has explained, the plain text, context, and history of Section 330 paint a clear picture of the scope of the IRS's authority with respect to the preparation and filing of Ordinary Refund Claims. That clarity cannot be eclipsed by brief, thinly supported references to ambiguous statutory language, the relevance of which the IRS never really explains.

Finally, the IRS hangs its hat on step 2 of the Court's Chevron inquiry. But, because the Court has concluded that the traditional tools of statutory interpretation unambiguously foreclose the IRS's interpretation -- that is, the regulation fails Chevron step 1 -- the Court need not analyze the regulation under Chevron step 2.

E. Permanent Injunction

Ridgely seeks both declaratory and injunctive relief, both of which the Court deems appropriate here. In terms of the former, Ridgely seeks the Court's declaratory judgment that the IRS lacked statutory authority to promulgate contingent fee restrictions on those preparing and filing Ordinary Refund Claims pursuant to Section 10.27 of Circular 230. In terms of the latter, Ridgely asks the Court to permanently enjoin the IRS from enforcing this regulation. The Court employs a four-factor test to determine whether to issue an injunction, examining whether (1) the plaintiff has suffered an irreparable injury; (2) "remedies available at law, such as monetary damages, are inadequate to compensate for that injury"; (3) "considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted"; and (4) a permanent injunction would not disserve the public interest. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

Ridgely has satisfied all four prongs of this test. The Court finds that Ridgely's asserted loss of clients and income as a result of Circular 230's restriction, see Amend. Compl. ¶ 10; Ridgely Reply at 23, is an irreparable injury that no remedy at law would adequately compensate. See Nat'l Mining Ass'n v. Army Corps of Eng'rs, 145 F.3d 1399, 1408-09 (D.C. Cir. 1998). The Court also concludes that the balance of hardships tips in Ridgely's favor, as the IRS's regulatory scheme is invalid and Ridgely has suffered financial loss. Finally, a permanent injunction would serve the public interest because of Section 10.27's invalidity. The Court will therefore grant Ridgely's request for permanent injunctive relief.

DATE: July 16, 2014

² The Court also dismissed two plaintiffs and two counts of the Complaint for lack of jurisdiction and failure to state a claim. Mar. 29, 2013 Order.

³ The parties have not raised, and the Court expresses no view on, the IRS's authority to issue and enforce standards of practice by representatives under other subsections.