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Calling For Backup: When Do You (Or Your Clients) Need To Bring In Counsel?

By Caroline D. Ciraolo
EA Journal
September/October 2021, Vol.39 No.5

Tax controversy practitioners include various professionals with diverse experience and expertise. From tax return preparers to certified public accountants (CPAs) and enrolled agents (EAs) to tax attorneys, a client has many options in seeking advice from those authorized to practice before the Internal Revenue Service (IRS) and state and local tax authorities.

With civil and criminal tax enforcement on the rise, having so many options can be a wonderful thing, but not every case is suited to every practitioner. So when should an enrolled agent seek the assistance of, or transfer a matter to, a tax attorney? For answers, we reached out to Caroline D. Ciraolo, former acting assistant attorney general of the Tax Division of the United States Department of Justice, president of the American College of Tax Counsel, and adjunct professor of the graduate tax programs at Georgetown University Law Center, and the University of Baltimore School of Law.

To Start, Is Communication Between an Enrolled Agent and a Client Privileged?
An enrolled agent is a federally authorized tax practitioner authorized to practice before the Internal Revenue Service and subject to the Treasury Department’s Circular 230 regulations. An enrolled agent must first pass a comprehensive IRS test or have experience as a former IRS employee. Communication between an enrolled agent and a client will be privileged if that communication falls within 26 U.S. Code §7525, which, subject to certain important exceptions, applies “the same common law protections of confidentiality which apply to a communication between a taxpayer and an attorney.”


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