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Determining who may practice law has long been held to be a function of the highest court in each state. However, the federal courts and administrative agencies have been allowed to determine who may practice before them, even if that includes nonlawyers. Unauthorized practice of law cases are brought before state courts. Since the early 1930s, state courts have generally held that tax preparation is the practice of law and therefore, the unauthorized practice of law if performed by a nonattorney. Most courts acknowledged that nonattorneys could fill out the simplest of tax forms, but whenever it became necessary to research or draw a conclusion about a tax law, that required an attorney. Accountants found in violation of the these statutes were generally restrained from practicing tax again. Recently, a few state bar associations tried to “take on” the national accounting firms. The cases were dropped after a considerable amount of time with no published results. Many felt that when the bar associations realized that if they won they would be restraining millions of accountants from practicing tax, the practicality of the situation suddenly hit. In 1998, the certified public accountant (CPA) lobby managed to get Congress to give them a “privilege” when they give tax advice. This privilege applies only to the extent an attorney would have a privilege and does not apply to criminal proceedings. Since under state law, accountants cannot give tax advice, this privilege under state law would have been null. Although unauthorized-practice cases are heard in state courts, tax cases are heard in federal courts, where the new privilege would be asserted. Federal judges have long held that, under common law, accountants have had no privilege. Thus, federal judges have held that generally attorneys are not practicing law when they practice tax and hence, have no privilege. Other theories expounded have dealt with waiver or have held that there is no privilege for business advice, only for legal advice that is pursuant to litigation. Split in authority There is now a split in authority between state and federal law as to what is and is not the practice of tax law. The U.S. Supreme Court has said that in determining what is the practice of law the courts should look to state law. However, that was long before the new privilege and the new body of federal law. So who should practice tax? Many people go to a CPA to have their taxes done, but actually, the CPA certificate has very little to do with tax. In fact, most CPAs have only had one or two tax classes. Most attorneys do not want to prepare taxes. In fact, many tax attorneys have also had only one or two tax classes (and very few business classes). With so much uncertainly surrounding the practice of law by nonattorneys, but with the demand for them to do taxes, it is time to look for a new solution. We propose the creation of a new tax bar. It would have two types of members. Those with a background of law or accounting would be eligible to sit for the tax bar exam. Successful applicants would be dubbed tax practitioners. They would be under the jurisdiction of the courts as are attorneys, and they would be able to practice by giving tax advice to the public and representing them before agencies and the courts. They would have the same privileges and rights as attorneys when practicing tax law. The second type would be a tax preparer. After successful completion of the tax preparer exam, they would be licensed to prepare others’ tax returns. This new tax bar would protect the interests of the states to safeguard the public, providing them with a degree of protection they do not now have. It would also create a work force requisite to do the daunting amount of tax work. Katherine D. Black, a certified public accountant, is an associate professor at Utah Valley State University. Stephen T. Black is a professor of law at Franklin Pierce Law Center. This piece is based upon the authors’ article, “A National Tax Bar: An End to the Attorney-Accountant Tax Turf War,” 36 St. Mary’s L. Rev. 1 (2004).

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