After the Tax Court announced proposed procedural changes in May, the American Bar Association Section of Taxation has offered several suggested modifications it says will ensure predictable admission processes and protect taxpayers when their representatives are disciplined.
U.S. Tax Court Chief Judge Patrick Urda announced proposed changes to Title XX of the court’s Rules of Practice and Procedure on May 26. Among the changes are revisions to Rule 200 regarding non-attorney examination and admission. The proposal also would revise Rule 202 to clarify a practitioner’s obligation to inform the court of information ranging from a change of address to a criminal conviction; adopt a procedure to suspend a practitioner who has been suspended or disbarred by another court, licensing body, or U.S. agency; and address disciplinary proceeding staffing.
In a July 24 letter, the ABA’s Section of Taxation asked the Tax Court to clarify and revise several of these proposed changes. While commending the court’s efforts to modernize its rules, the Section recommended several targeted changes to the proposed amendments to Title XX, which covers admission, practitioner conduct, and disciplinary matters.
Exam schedule for non-attorneys
The ABA urged the court to maintain a predictable examination schedule for non-attorneys seeking to practice before it. Current rules require the non-attorney exam to be held “no less often than every 2 years,” the group notes. The proposed amendment to Rule 200(a)(3)(A)(i) would change this to require that the court “periodically administer” the exam.
The ABA explained that this change could permit intervals of more than two years between exams. An “uncertain or infrequent examination schedule,” the letter states, discourages qualified non-attorney applicants from preparing for admission. It recommended either retaining the two-year requirement or providing guidance that exams would ordinarily be held approximately every two years, subject to a defined outside interval.
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The group is also seeking a clear admission path for former attorneys whose bar status ended for non-disciplinary reasons, such as retirement or resignation. Under the proposed rules, the non-attorney admission process would be unavailable to anyone who has ever been admitted to a state bar, the letter explains. Meanwhile, the attorney admission process requires a certificate of current good standing, which a former attorney may be unable to obtain.
The ABA recommended the court identify a path for these individuals to seek admission, such as allowing them to apply as an attorney by showing their prior bar status ended for reasons unrelated to discipline.
Practitioner reporting rules
The ABA suggested several clarifications to proposed Rule 202, which would expand practitioner reporting obligations. It asked the court to clarify the reporting obligation for a “change in status,” distinguishing routine registration updates, like admission to another bar, from adverse changes that could affect a practitioner’s fitness to practice.
The group also asked the court to:
- clarify how the term “professional licensing body” applies to non-attorney regulators, such as state boards of accountancy;
- adopt a specific form or a process within DAWSON for practitioners to report required information, such as convictions or disciplinary actions; and
- distinguish between disciplinary suspensions and administrative suspensions (e.g., for non-payment of dues), arguing the latter should not automatically trigger immediate suspension from Tax Court practice.
Client notice procedures
The ABA also cautioned that when a practitioner is suspended or disbarred, their clients in active Tax Court cases may be left without representation and without notice. The proposed rules do not specify how or when petitioners will be notified that their representative can no longer appear for them, the group notes.
The letter recommends the court adopt a procedure to ensure petitioners receive timely notice when their representative is suspended, disbarred, or otherwise becomes unable to practice. The letter suggests this could be modeled on the ABA’s Model Rules for Lawyer Disciplinary Enforcement, Rule 27, with adaptations for Tax Court practice and non-attorney practitioners. Rule 27 calls for notice to clients, co-counsel, and opposing counsel or adverse parties when an attorney is subject to discipline or transfers to disability inactive status.
Another option, wrote the group, is using DAWSON to identify the practitioner’s cases and issue a notice directly to petitioners in those cases.
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