Paul L. Caron

Friday, October 14, 2011

Holmes: The Tax Lawyer as Gatekeeper

Rachelle Y. Holmes (George Mason), The Tax Lawyer as Gatekeeper, 49 U. Louisville L. Rev. 185 (2010):

How much duty and loyalty does the tax lawyer owe to her client versus that which is owed to the IRS and tax system as a whole? In this Article, I argue that the proper balance can best be achieved by formally installing the tax advisor in a gatekeeper capacity. That is, while the tax lawyer's primary role is, and should remain, that of an advisor (or in the case of an adversarial proceeding, an advocate), the tax lawyer is also properly positioned to provide certain gatekeeping functions, including compliance monitoring and misconduct prevention. Such functions would be wholly compatible with the long-standing professional responsibility duties of a lawyer. However, under the current applicable tax rules and guidelines, although the tax lawyer is certainly vested with a number of quasi-gatekeeper responsibilities, her duties often either over-effect or under-effect an ideal gatekeeper model. As a result, certain modifications to the present tax regime must be made to realize fully the benefits of the tax lawyer's gatekeeping capabilities.

Part II of this Article outlines the ideal function of a gatekeeper and establishes when such a position is most ideally instituted. It then argues that the tax lawyer is well positioned to serve in this capacity because of the numerous failures of the tax system and the tax lawyer's necessary involvement in the taxpayer's transaction structuring and return processes. Part III provides an overview of the current tax “fence,” which includes Circular 230, the taxpayer-penalty regime, list maintenance and reporting, and the newly introduced tax-return-preparer rules. Together, these regulations often clumsily place, without much deterrence, the tax advisor in quasi-gatekeeping capacities. Parts IV and V outline how the tax lawyer's gatekeeping role should be implemented and reinforced, including eliminating some of the ineffective and overly adversarial elements of the current system, raising the standards for tax legality and penalty protection between tax lawyers and taxpayers, and augmenting the tax lawyer's due diligence responsibilities. Part VI concludes.

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