Who May Speak?
Rev. 07/09/04, E-mail Alert 2004-14

Power of Attorney Form 2848 is used for many purposes. For one, it enables practitioners to submit retirement plan documents to the IRS on behalf of their clients. A controversy has arisen about who may actually represent the client if the IRS has questions about the documents that have been submitted.

The IRS recently stated that it would speak only with an actuary, an attorney, an accountant, or an enrolled agent named on a Form 2848. Practitioners without these credentials who have represented clients in the past are being shut out. McKay Hochman and others are now bringing to the IRS’s attention the reality of how the system has been operating up to this point, and how this change will impair the system going forward .

The IRS TE/GE division is indicating that it is interested in listening to representatives of the practitioners about this matter. The issue to be addressed is what other credentials the IRS will accept. Who else will be permitted to represent the employers on qualified plan issues before the IRS? Rich Hochman will be attending a meeting with the IRS on the Form 2848 representation issue later this month. Your feedback or suggestions are welcome. You can contact Rich at rhochman@mhco.com.

MHCO Comment:

This change, if not reconsidered, may also impact the ability to execute a Form 5558, which is used to extend the Form 5500 filing deadline. To sign Form 5558 under a power of attorney, would the individual have to be able to sign the revised Form 2848?

This is an open question that will need resolution. The most conservative answer is yes, (the individual would also have to be able to sign the Form 2848) since the new Form 2848 eliminates Category H the "Unenrolled Return Preparer."

We’ll keep you advised of developments.