Thursday, August 18, 2005

Section 230 Update

On August 4, Leslie Samuels and Diana Wollman wrote to Cono R. Namorato, Director,Office of Professional Responsibility, of the IRS and Stephen A. Whitlock, Deputy Director, Office of Professional Responsibility, IRS, to confirm that the Service agreed with their interpretation of Circular 230 as applied to certain types of agreements, term sheets and educational materials.

Specifically, the following do not constitute written advice that would be subject to the covered opinion rules of Section 10.35, and thus need not contain the "opt-out legends":
  • Transaction Agreements and Other "Operative" Agreements Between Parties to a Transaction--"transaction agreements and other 'operative agreements', and proposed revisions to such agreements provided by practitioners, are clearly not within the meaning of a covered opinion because these agreements and drafts do not constitute 'tax advice'. These are (and are intended to be) binding agreements between the parties to the transaction - - not advice from the practitioner."

  • Term Sheets for a Transaction--"These are really just 'early' versions of . . . operative agreements . . . .We do not believe that these could possible be covered opinions for the same reasons that the agreements and drafts of agreements could not be. These simply are not tax advice and no taxpayer would mistakenly think that a term sheet is advice or that it could possibly rely on a term sheet to avoid penalties."
  • Articles, Training Outlines and Presentations and Books--"[W]e understand that some practitioners are still concerned that these types of materials may be seen as containing 'tax advice' because they explain how the law works and often include hypothetical fact patterns followed by an analysis of how the law applies to the hypothetical facts. They may even address the facts of a real case, such as a case that was the subject of a court decision, an IRS ruling or a news story. "We believe that it would be inappropriate to interpret the rules to cover such materials. These are clearly intended to be educational, not to transmit advice. While it is true that other practitioners and taxpayers may often refer to such materials in formulating a view as to the actual consequences to a specific taxpayer of a given transaction or situation, these materials are not themselves 'advice'."
The letter and a companion letter that dealt with similar Circular 230 issues pertaining to certain letters and opinions issued in connection with securities offerings and M&A transactions are available at Tax Notes and the BNA Daily Tax Report.


I now have free links to both the August 4 Samuels/Wollman letter and the July 1 Samuels/Wollman letter.

Update II

Michael J. Desmond, Treasury’s acting deputy tax legislative counsel, "in response to questions about recently published letters from New York lawyers who refer to agreements reached with OPR officials during private meetings" has stated that "[u]nanswered letters to the IRS are not guidance." See here.

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