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Abstract

In Part I, this Article briefly examines the debate over the proper role of the tax professional in representing clients. Part II discusses whether tax professionals owe special duties to the tax system. Part III analyzes how the tax professionals’ involvement in several waves of tax shelter abuses is in sharp contrast to the high-minded rhetoric of the tax ethics debate. This part also discusses changes in the legal and accounting professions that have contributed to the current state of taxpayer representation. This Article advocates for the position that tax professionals owe a duty to the tax system and such a duty must be grounded in concrete guidance. Part IV proposes several changes that would delineate more clearly the tax professionals’ duty to the system while preserving the professionals’ duty and right to vigorously represent their clients within the bounds of the law. We believe that the Circular 230 standards of practice, the preparer tax penalty provisions in section 6694 of the Code, and the taxpayer substantial understatement penalty provisions in section 6662 should be harmonized to require that the advice of tax professionals to taxpayers with respect to tax return positions meet the “more likely than not” standard, except, in the case of non-tax shelter transactions, when the taxpayer discloses the position on the return. Disclosed positions should be required to meet an enhanced “reasonable basis” standard.

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