Circular 230 penalty.

• Author: Laffie, Lesli S.
• Position: FROM THE IRS

Notice 2007-39 contains guidance on the imposition of monetary penalties for prohibited conduct under Section 10.52 of Circular 230, Regulations Governing the Practice of Attorneys, Certified Public Accountants, Enrolled Agents, Enrolled Actuaries, and Appraisers Before the Internal Revenue Service. The American Jobs Creation Act of 2004 (AJCA) amended 31 USC Section 330 (which authorizes the regulation of practice before the Service) to allow monetary penalties to be imposed on a practitioner who (1) is incompetent, (2) is disreputable, (3) violates regulations under 31 USC Section 330 or (4) willfully and knowingly misleads or threatens represented parties or a prospective party with an intent to defraud. (The regulations under that section are known as Circular 230.) Guidance and examples are provided as to the amount of the penalty and its imposition on a practitioner's employer or firm.

Penalty amount: Under the AJCA amendments, the maximum amount of the penalty will be the income derived by engaging in the prohibited conduct. The IRS has clarified that, if the prohibited conduct is a single part of a larger engagement, the maximum penalty will be the income derived from the entire engagement. If the entire engagement commenced before Oct. 23, 2004, the maximum penalty will be determined on a pro-rata basis to exclude amounts attributable to activities before the AJCA effective date. The Service may impose separate penalties against a practitioner and any employer or firm; they cannot exceed the income received by the sanctioned party. Further, the IRS may impose a penalty that is less than the statutory maximum based on (1) the culpability of the violating practitioner or the practitioner's employer or firm or (2) whether there was a duty owed a client, the actual harm done to a client or other mitigating factors. "Mitigating factors" will include whether the practitioner, employer or firm took prompt action to correct the noncompliance, promptly ceased to engage in the prohibited conduct, attempted to rectify any harm done by the conduct or undertook measures to ensure the conduct would not be repeated.

Generally, the Service will not impose a penalty when there have been minor...