IRS Circular 230 Disclosure

[Effen]

I have notice most lawyers automatically attach an IRS Circular 230 Disclosure statement at the end of all of their emails.

IRS Circular 230 Disclosure:  In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

Should non-lawyers (actuaries, accountants, ASPPPPPPA credentialed) do the same? What are you all doing?

Guess I should have searched first, but I'm still interested in opinions.

prior post 1

[mbozek]

Providing Circular 230 disclosure has become quite the fad.The disclaimers only need to be given if tax advice/opinion is being given by advisors to clients regarding the application of tax laws (but not ERISA or PBGC). However, Circular 230 disclaimers do not generally have to be provided for written advice that concerns the qualification of a qualified plan. Disclaimers do not have to provided in advising clients of benefits under the tax law that are legally permitted, e.g., the max contribution to DC plans is $42,000 and maximum deduction is 25% of covered compensation or the advangages of establishing a Roth 401k plan. I don't believe there is any tax penalty for failing to provide a disclaimer even if one is required, since Circular 230 applies only to practitioners who are admitted to practice before the IRS, e.g. attorneys, CPAs, enrolled agents and enrolled actuaries.

The most amazing thing is that very few people know what purpose a Circular 230 disclaimer serves when it is added to correspondence . (It puts the client on notice that the tax opinion rendered by an advisor admitted to practice before the IRS cannot be relied upon to avoid the penalities for underpayment of taxes. In order avoid a Circular 230 disclaimer the opinion would need to meet certain strict requirements regarding the substance and the analysis of the tax law.)

Lawyers and CPAs are adding disclaimers to all correspondence because they cant differentiate between tax advice (which includes emails) rendered to clients and routine information that is not subject to Circular 230. As a result advisors now include a 230 disclaimer if an IRC section or regulation is mentioned in correspondence.

[Dave Baker]

One user of these boards has suggested to me that a Circular 230 disclaimer ought to be available as a clickable "boilerplate" addition for message posts... I wonder if such a disclaimer raises the risk that somebody would argue the text of a reply message contained "advice" to him or her upon which he or she was able to legally rely (for purposes of suing over negligent advice)?

[mbozek]

I agree with you Dave. One problem of putting a disclaimer on material is that it creates an implication that it constitutes advice or opinion because the disclaimer language appears. The problem is that most practitioners are slapping disclaimer language on all their correspondence because they dont have time to think about whether the correspondence is rendering tax advice or opinions under Circular 230. I dont know if there has ever been a case of someone claiming that a reply to a question on a bulletion board was advice because in lawyer terms I dont see any privity of contract between the poster and responder or attorney-client relationship established by posting a response on a public forum to an anomyous source.