Sec. 601.503 Requirements of power of attorney, signatures, fiduciaries and Commissioner's authority to substitute other requirements.
Requirements.
A power of attorney must contain the following information--
name and mailing address of the taxpayer;
(2) identification number of the taxpayer (i.e., social security number and/or employer identification number);
(3) employee plan number (if applicable);
(4) name and mailing address of the recognized representative(s);
(5) description of the matter(s) for which representation is authorized which, if applicable, must include --
Acceptable power of attorney documents.
Form 2848.
A properly completed Form 2848 satisfies the requirements for both a power of attorney (as described in section 601.503(a)) and a declaration of representative (as described in section 601.502(c)).
(2) Other documents.
The Internal Revenue Service will accept a power of attorney other than Form 2848 provided such document satisfies the requirements of section 601.503(a). However, for purposes of processing such documents onto the Centralized Authorization File (see section 601.506(d)), a completed Form 2848 must be attached. (In such situations, Form 2848 is not the operative power of attorney and need not be signed by the taxpayer. However, the Declaration of Representative must be signed by the representative.)
(3) Special provision.
The Internal Revenue Service will not accept a power of attorney which fails to include the information required by sections 601.503(a)(1) through (5). If a power of attorney fails to include some or all of the information required by such section, the attorney-in-fact can cure this defect by executing a Form 2848 (on behalf of the taxpayer) which includes the missing information. Attaching a Form 2848 to a copy of the original power of attorney will validate the original power of attorney (and will be treated in all circumstances as one signed and filed by the taxpayer) provided the following conditions are satisfied --
The original power of attorney contemplates authorization to handle, among other things, Federal tax matters, (e.g., the power of attorney includes language to the effect that the attorney-in-fact has the authority to perform any and all acts).
(ii) The attorney-in-fact attaches a statement (signed under penalty of perjury) to the Form 2848 which states that the original power of attorney is valid under the laws of the governing jurisdiction.
Other categories of powers of attorney.
Categories of powers of attorney not addressed in these rules (e.g., durable powers of attorney and limited powers of attorney) will be accepted by the Internal Revenue Service provided such documents satisfy the requirements of sections 601.503(b)(2) or (3).
Signatures.
Internal Revenue Service officials may require a taxpayer (or such individual(s) required or authorized to sign on behalf of a taxpayer) to submit appropriate identification or evidence of authority. Except when Form 2848 (or its equivalent) is executed by an attorney-in-fact under the provisions of section 601.503(b)(3), the individual who must execute a Form 2848 depends on the type of taxpayer involved --
Individual taxpayer.
In matter(s) involving an individual taxpayer, a power of attorney must be signed by such individual.
(2) Husband and wife.
In matters involving a joint return the following rules apply--
Joint representation.
In the case of any matter concerning a joint return in which both husband and wife are to be represented by the same representative(s), the power of attorney must be executed by both husband and wife.
(ii) Individual representation.
In the case of any matter concerning a joint return in which both husband and wife are not to be represented by the same recognized representative(s), the power of attorney must be executed by the spouse who is to be represented. However, the recognized representative of such spouse cannot perform any act with respect to a tax matter that the spouse being represented cannot perform alone.
Corporation.
In the case of a corporation, a power of attorney must be executed by an officer of the corporation having authority to legally bind the corporation, who must certify that he/she has such authority.
(4) Association.
In the case of an association, a power of attorney must be executed by an officer of the association having authority to legally bind the association, who must certify that he/she has such authority.
(5) Partnership.
In the case of a partnership, a power of attorney must be executed by all partners, or if executed in the name of the partnership, by the partner or partners duly authorized to act for the partnership, who must certify that he/she has such authority.
(6) Dissolved partnership.
In the case of a dissolved partnership, each of the former partners must execute a power of attorney. However, if one or more of the former partners is deceased, the following provisions apply --
The legal representative of each deceased partner(s) (or such person(s) having legal control over the disposition of partnership interest(s) and/or the share of partnership asset(s) of the deceased partner(s)) must execute a power of attorney in the place of such deceased partner(s). (See section
601.503(c)(6)(ii).)
(ii) Notwithstanding section 601.503(c)(6)(i), if the laws of the governing jurisdiction provide that such partner(s) has exclusive right to control or possession of the firm's assets for the purpose of winding up its affairs, the signature(s) of the surviving partner(s) alone will be sufficient. (If the surviving partner(s) claims exclusive right to control or possession of the firm's assets for the purpose of winding up its affairs, Internal Revenue Service officials may require the submission of a copy of or a citation to the pertinent provisions of the law of the governing jurisdiction upon which the surviving partner(s) relies.)
Fiduciaries.
In general, when a fiduciary is involved in a tax matter, a power of attorney is not required. Instead Form 56, "Notice Concerning Fiduciary Relationship" should be filed. Types of taxpayer for which fiduciaries act are --
Dissolved corporation
Appointed trustee.
In the case of a dissolved corporation, Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the liquidating trustee(s), if one or more have been appointed, or by the trustee(s) deriving authority under a law of the jurisdiction in which the corporation was organized. If there is more than one trustee, all must join unless it is established that fewer than all have authority to act in the matter under consideration. Internal Revenue Service officials may require the submission of a properly authenticated copy of the instrument and/or citation to the law under which the trustee derives his/her authority. If the authority of the trustee is derived under the law of a jurisdiction, Internal Revenue Service officials may require a statement (signed under penalty of perjury) setting forth the facts required by the law as a condition precedent to the vesting of authority in said trustee and stating that the authority of the trustee has not been terminated.
(ii) No appointed trustee.
If there is no appointed trustee, a Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the stockholder(s) holding a majority of the voting stock of the corporation as of the date of dissolution. Internal Revenue Service officials may require submission of a statement showing the total number of outstanding shares of voting stock as of the date of dissolution, the number of shares held by each signatory to a power of attorney, the date of dissolution, and a representation that no trustee has been appointed.
Insolvent taxpayer.
In the case of an insolvent taxpayer, Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the trustee, receiver, or attorney appointed by the court. Internal Revenue Service officials may require the submission of a certified order or document from the court having jurisdiction over the insolvent taxpayer which shows the appointment and qualification of the trustee, receiver, or attorney and that his/her authority has not been terminated. In cases pending before a court of the United States (e.g., U.S. District Court or U.S. Bankruptcy Court), an authenticated copy of the order approving the bond of the trustee, receiver, or attorney will meet this requirement.
(3) Deceased taxpayers
Executor, personal representative or administrator.
In the case of a deceased taxpayer, a Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the executor, personal representative or administrator if one has been appointed and is responsible for disposition of the matter under consideration. Internal Revenue Service officials may require the submission of a short-form certificate (or authenticated copy of letters testamentary or letters of administration) showing that such authority is in full force and effect at the time the Form 56, "Notice Concerning Fiduciary Relationship," is filed.
(ii) Testamentary trustee(s).
In the event that a trustee is acting under the provisions of the will, a Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the trustee, unless the executor, personal representative or administrator has not been discharged and is responsible for disposition of the matter. Internal Revenue Service officials may require either the submission of evidence of the discharge of the executor and appointment of the trustee or other appropriate evidence of the authority of the trustee.
(iii) Residuary legatee(s).
If no executor, administrator, or trustee named under the will is acting or responsible for disposition of the matter and the estate has been distributed to the residuary legatee(s), a Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the residuary legatee(s). Internal Revenue Service officials may require the submission of a statement from the court certifying that no executor, administrator, or trustee named under the will is acting or responsible for disposition of the matter, naming the residuary legatee(s), and indicating the proper share to which each is entitled.
(iv) Distributee(s).
In the event that the decedent died intestate and the administrator has been discharged and is not responsible for disposition of the matter (or none was ever appointed), a Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the distributee(s). Internal Revenue Service officials may require the submission of evidence of the discharge of the administrator (if one had been appointed) and evidence that the administrator is not responsible for disposition of the matter. It also may require a statement(s) signed under penalty of perjury (and such other appropriate evidence as can be produced) to show the relationship of the individual(s) who sign the Form 56, "Notice Concerning Fiduciary Relationship," to the decedent and the right of each signer to the respective shares of the assets claimed under the law of the domicile of the decedent.
Taxpayer for whom a guardian or other fiduciary has been appointed.
In the case of a taxpayer for whom a guardian or other fiduciary has been appointed by a court of record, a Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the fiduciary. Internal Revenue Service officials may require the submission of a court certificate or court order showing that the individual who executes the Form 56, "Notice Concerning Fiduciary Relationship," has been appointed and that his/her appointment has not been terminated.
(5) Taxpayer who has appointed a trustee.
In the case of a taxpayer who has appointed a trustee, a Form 56, "Notice Concerning Fiduciary Relationship," should be filed by the trustee. If there is more than one trustee appointed, all should join unless it is shown that fewer than all have authority to act. Internal Revenue Service officials may require the submission of documentary evidence of the authority of the trustee to act. Such evidence may be either a copy of a properly executed trust instrument or a certified copy of extracts from the trust instruments, showing --
The date of the instrument;
(ii) That it is or is not of record in any court;
(iii) The names of the beneficiaries;
(iv) The appointment of the trustee, the authority granted, and other information as may be necessary to show that such authority extends to Federal tax matters; and
(v) That the trust has not been terminated and the trustee appointed therein is still legally acting as such.
In the event that the trustee appointed in the original trust instrument has been replaced by another trustee, documentary evidence of the appointment of the new trustee must be submitted.
Commissioner's authority to substitute other requirements for power of attorney.
Upon application of a taxpayer or a recognized representative, the Commissioner of Internal Revenue may substitute a requirement(s) other than provided herein for a power of attorney as evidence of the authority of the representative.
[56 FR 24005, May 28, 1992, corrected at 57 FR 27356, June 19, 1992]
