Systemic Problems in the CAF Unit with Form 2848 Processing for Academic LITCs

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Tax Court update:  The Court’s website announces that all of the calendars scheduled for January 28 are cancelled.

Professor Patrick Thomas usually brings us posts on designated orders but today branches out to discuss an issue impacting all practitioners but of particular importance to academic clinics. All practitioners interact with the CAF unit at the IRS in order to submit their power of attorney (POA) forms. If the CAF unit does not operate efficiently, the problems there multiply downstream and cause significant frustration for the practitioner, the client and for other parts of the IRS. The failure of the CAF unit to operate efficiently can cause practitioners to resort to the phone lines and engage in lengthy calls to resolve issues and obtain transcripts in situations where the IRS and the practitioner would prefer to avoid that interaction.

While only a small portion of our readers will encounter the specific problems academic clinics encounter where the IRS breaks apart the required six page submission necessary when substituting a student onto a POA, many of the CAF unit problems cross all practice areas. The low income tax clinic community, and particularly its academic component, is engaging in a conversation with the CAF unit to seek improvements. We welcome others to join in that effort. If you read no other portion of Professor Thomas’ post today, look closely at the chart he created regarding correspondence. If you experience the same amazing problem of receiving correspondence two months after the date on the correspondence, let the IRS know about your frustration and help us work together with the IRS to improve this critical process. Keith

I’m willing to bet that all federal tax practitioners have, at one time or another, experienced problems with the IRS Centralized Authorization File (CAF) Unit. The CAF Unit processes Form 2848 (among other forms), which authorizes practitioners to receive information on behalf of their clients that is otherwise protected from disclosure under section 6103.

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The Form 2848 Filing and Rejection Processes

Filling out and filing Form 2848 is, in theory, relatively straightforward. List the client’s name, address, and taxpayer identification number. List the representative’s name, address, phone, fax, and CAF number. List the tax periods and tax types for which the client wishes to grant access. Have the client sign, date, and print their name. Sign and date the form yourself as the practitioner. Fax the form to the CAF Unit. Within a week or two, the practitioner should have access to the taxpayer’s information throughout the IRS, including transcripts through IRS e-Services.

But sometimes the Form 2848 is rejected. Much of the time, the CAF Unit properly rejects incomplete Forms 2848. Perhaps the taxpayer or practitioner missed one of the steps above; that’s certainly happened to me more times than I’d like to admit.

Other times, the CAF Unit rejects a perfectly valid Form 2848. In my prior clinical practice, the CAF Unit often did so because they believed our signature appeared to be a copy or stamped. (It was not.) (How exactly the CAF Unit can perceive a copied or stamped signature from a fax—which is, itself, a copy—I do not know). Illegibility of a name or date can also cause rejection, even if it’s the fax that causes the illegibility.

In either case, the CAF Unit sends a letter to the practitioner and the taxpayer, indicating the problem it sees in the Form 2848, with a copy of the offending Form 2848 and directions for correcting the issue.

When the Form 2848 is rejected for an invalid reason, numerous complications arise. First, the practitioner doesn’t have access to the taxpayer’s information on IRS e-Services, making initial investigation of the tax problem fairly difficult. Second, IRS telephone assistors may be unwilling to speak with the practitioner, even where the practitioner can fax a Form 2848 to them directly. And third, but not unimportantly, the taxpayer can become confused because the IRS sends the taxpayer a copy of the POA rejection notice. The notice comes to the taxpayer with no context. The taxpayer receives it at the same time the practitioner receives notice so that the practitioner has no opportunity to explain what is happening before the taxpayer receives the notice of rejection of the POA. This frequently causes the taxpayer to believe either that they or the practitioner have made a mistake before the IRS (even when none has occurred) or that the IRS will not allow the practitioner to represent them leaving them on their own to deal with the IRS. These issues are an annoyance for most practitioners, but ultimately are surmountable.

Special Concerns for Academic LITCs

Student Representatives and Substitution Procedures

These problems multiply for academic Low Income Taxpayer Clinics, especially those that change students frequently. Per IRM 4.11.55.2.1.1, law students in an LITC may represent taxpayers if, per IRM 21.3.7.8.5, the Taxpayer Advocate Service issues a special appearance authorization (“Authorization Letter”), which we must attach to a Form 2848 on which a student representative appears. Student representative authority lasts for 130 days—about the length of one semester.

Because students cycle in and out of the Clinic so frequently, most academic clinics opt to use the “substitution procedures” to change or add representatives. Per IRM 4.11.55.2.3.1.2, a practitioner may substitute authority to another representative or add another representative if the taxpayer grants this authority on the original Form 2848, Line 5a. Per IRM 21.3.7.8.5(6) an LITC Director may delegate authority to student representatives. The Director must sign the substitute Form 2848 on behalf of the taxpayer, attach a copy of the original Form 2848 that authorized the Director to add or substitute a representative, and attach a copy of the Authorization Letter. The student representative and Director also sign as the representatives.

It is not feasible for LITCs to have clients sign a new Form 2848 every 4 to 6 months. IRS cases take a long time to work. Our Clinic currently has about fifty active cases; obtaining signatures for all of these clients would take up much of the first few weeks of the clinical experience. As many clinicians can attest, our clients may not respond to requests for information or documentation as quickly as we’d like. Therefore, the substitution procedures provide an expedient solution to this problem, one which is explicitly recognized in the IRM.

Form 2848 Rejections in Academic LITCs – A Case Study

Because of the confluence of these unique requirements, academic clinics experience a high rejection rate for Form 2848. All clinicians understand this intuitively; however, this past semester, I conducted a systemic analysis of my clinic’s Form 2848 submissions and rejections. Of the approximately 50 Forms 2848 submitted, 10 were rejected. Three were rejected for valid reasons (one student representative forgot to sign the 2848; in the other two, the student representative sent last semester’s Authorization Letter, rather than the current semester).

Failure to Timely Notify

Before delving into the reasons for the improper rejections, the CAF Unit’s notification delays deserve mention. Our Clinic’s small survey indicates that the CAF Unit consistently fails to notify practitioners of an error until about two months from the date of faxing the Form 2848. While the CAF Unit usually dates its rejection letters soon after it receives the Form 2848, we do not actually receive those letters anywhere close to their dates. One letter took nearly three months to arrive. Below, I include a table of the rejection letters I used in our analysis.

Letter Number Date of Fax from Clinic Date of CAF Receipt Date of Letter Date of Clinic Receipt Taxpayer
1 9/7/2018 9/10/2018 9/21/2018 11/5/2018 Client A
2 9/6/2018 9/6/2018 9/18/2018 11/5/2018 Client B
3 9/5/2018 9/11/2018 9/18/2018 11/5/2018 Client C
4 9/5/2018 9/11/2018 9/18/2018 11/5/2018 Client C
5 9/10/2018 9/10/2018 9/21/2018 11/5/2018 Client D
6 8/23/2018 8/23/2018 9/6/2018 10/25/2018 Client E
7 8/23/2018 8/23/2018 9/6/2018 10/25/2018 Client F
8 7/24/2018 7/24/2018 8/8/2018 9/24/2018 Client G
9 9/5/2018 9/4/2018 9/20/2018 11/6/2018 Client H
10 9/7/2018 9/12/2018 9/21/2018 11/7/2018 Client I
11 9/7/2018 9/10/2018 10/9/2018 12/3/2018 Client J
12 9/7/2018 9/24/2018 10/1/2018 December 2018 Client A

* While there were 10 clients and 10 Forms 2848 submitted, there are 12 rejection letters from the CAF. This is due, as noted above, to rejection letters for both a substitute Form 2848 and original Form 2848 for the same client.

This notification delay hampers effective client representation in an academic LITC. Telephone assistors routinely do not communicate with student representatives if they are not properly entered in CAF—even if a student can fax them an appropriately executed Form 2848. Students may not discover this until they must take action on a case within the two months in which the CAF Unit has failed to appropriately process their Form 2848. Unless I am physically present in the Clinic to step in and take over the conversation—a pedagogical opportunity that I do not enjoy usurping from my students—students often can make no progress and taxpayer representation suffers.

Stated Reasons for Rejections

In each letter to the practitioner/taxpayer that rejects a Form 2848, the CAF Unit provides a block-text reason for rejection. Below, I provide a redacted version of a letter I sent to the CAF Unit director in December, detailing the inappropriate rejections we received, along with our responses thereto. The stated reasons for rejection often feel Kafkaesque; for example, numerous letters stated that the CAF Unit rejected the Form 2848 because it did not include an Authorization Letter. The CAF Unit then attached the Authorization Letter from our submission to the Form 2848 it rejected. More details appear below:

Letters 1 and 12 (Client A)

On September 7, 2018, Student Attorney 1 submitted a substitute Form 2848 for our client, Client A. This included (1) an original Form 2848 signed by Client A, which authorized myself and a former student attorney; (2) the student authorization letter from TAS for Fall 2018; and (3) a substitute Form 2848 that I signed on behalf of Client A, which substituted Student Attorney 1 as the representative. The former student attorney was a student in the Tax Clinic in Spring 2018, and Student Attorney 1 was a student in Fall 2018.

The CAF Unit sent two rejection letters. The first (Letter 1), received on November 5, contained the entire submitted package, but rejected the Form 2848 as noted below:

  • “You indicated you are delegating or substituting one representative for another. Please refer to Section 601.505(b)(2)(i), Statement of Procedural Rules, which you can find in Publication 216, Conference and Practice Requirements, for information on what you must send to us to make this delegation or substitution…”
  • “You indicated you want an existing power of attorney to remain in effect. Please attach to your form a copy of the power of attorney you want to remain active.”

The Clinic received another rejection letter in December 2018 regarding this client. This letter only contained the original Form 2848. In addition to the statement referring the Clinic to 26 CFR § 601.505(b)(2)(i), the letter stated:

  • “On Form 2848, you entered “student attorney” … as the designation in the Declaration of Representative. We need a copy of the Authorization for Student Tax Practice Letter the Taxpayer Advocate Service sent you that authorizes you to practice before the IRS.”

Response: The Form 2848 that the CAF Unit sent back to the Clinic was properly filed. Using the substitution authority granted on the original Form 2848 that the client signed, I substituted Student Attorney 1 for the former student representative. The Clinic attached the original Form 2848, which was signed by the client and both representatives. I signed the substitute Form 2848 as the taxpayer’s POA, and both I and the new student representative signed as representatives. Finally, the Clinic attached the student authorization letter from the LITC Program Office for Fall 2018.

We did not indicate that we wanted an existing POA to remain in effect. Had we so indicated, we would have checked Line 6 on the Form 2848. Line 6 is blank on the substitute Form 2848.

Letters 3 & 4 (Client C)

Student Attorney 2 submitted a substitute Form 2848 for Client C on September 5, 2018. This fax submission contained the following documents, in this order: (1) fax cover sheet, (2) the Fall 2018 student authorization letter, (3) a substitute Form 2848, and (4) an original Form 2848, signed by the client, which granted authority to substitute or add representatives.

The CAF Unit stated the following reason for rejection of the Form 2848 in both Letter 3 and Letter 4:

  • “On Form 2848, you entered “student attorney”… . We need a copy of the Authorization for Student Tax Practice letter the Taxpayer Advocate Service sent you that authorizes you to practice before the IRS.

Response: Letter 3 contains a substitute Form 2848 that I signed on behalf of the client as her POA on August 29, 2018. Letter 4 contains the original Form 2848 that the client signed on June 28, 2018, and which granted me authority to substitute or add representatives. It seems that the CAF Unit separated the original Form 2848 from the substitute Form 2848, along with misplacing the student authorization letter.

Letter 5 (Client D)

Student Attorney 3 submitted a substitute Form 2848 for Client D on September 10, 2018. This fax submission contained the following documents, in this order: (1) fax cover sheet, (2) page one of a substitute Form 2848, (3) student authorization letter, (4) page two of the substitute Form 2848, and (4) an original Form 2848.

The CAF Unit stated the following reason for rejection of the Form 2848:

  • “You indicated you want an existing power of attorney to remain in effect. Please attach to your form a copy of the power of attorney you want to remain active.”

Response: As with Letter 1, we did not indicate that we wanted an existing POA to remain in effect. Had we so indicated, we would have checked Line 6 on the Form 2848. Line 6 is blank on the substitute Form 2848.

The letter from the CAF Unit attached only the substitute Form 2848 and a student authorization letter. The packet did not contain the original Form 2848. It appears that the CAF Unit separated the substitute from the original Form 2848.

Letter 8 (Client G)

Student Attorney 4 submitted an original Form 2848 to the CAF Unit on July 24, 2018, which was signed by the client, Client G, along with a student authorization letter for Summer 2018.

The CAF Unit stated the following reason for rejection of the Form 2848:

  • “On Form 2848, you entered “student attorney”… . We need a copy of the Authorization for Student Tax Practice letter the Taxpayer Advocate Service sent you that authorizes you to practice before the IRS.

Response: The letter attached the original 2848, which was signed by the client and both representatives. It also attached the student authorization letter for summer 2018, dated May 9, 2018. This is the very document that the CAF Unit letter itself requests.

While the student authorization letter limits practice to a maximum of 130 days, 130 days from May 9, 2018 is September 16, 2018. Given that the CAF Unit received the Form 2848 on July 24, 2018 and issued this letter on August 8, 2018, there is no timeliness issue.

Letter 9 (Client H)

Student Attorney 4 sent a substitute Form 2848 for this client on September 5, 2018. This fax included (1) a fax cover sheet, (2) a substitute Form 2848 for Client H, which added the student attorney as a representative, and which I signed for the client (3) the Fall 2018 student authorization letter from TAS, and (4) the original Form 2848 signed by the client, which authorized me to substitute or add representatives.

The CAF Unit stated the following reason for rejection of the Form 2848:

  • “On Form 2848, you entered “student attorney”… . We need a copy of the Authorization for Student Tax Practice letter the Taxpayer Advocate Service sent you that authorizes you to practice before the IRS.

The CAF Unit’s letter attached the original 2848, which is signed by the client and both representatives. It does not include the student authorization letter. It seems that the CAF Unit separated the original Form 2848 from the substitute Form 2848, along with misplacing the student authorization letter.

Letters 10 and 11 (Clients I and J)

Student Attorney 1 faxed a substitute Form 2848 for these clients on September 7, 2018. These faxes included (1) a fax cover sheet, (2) a substitute Form 2848 for the client, which added the student attorney as a representative, and which I signed for the client (3) the Fall 2018 student authorization letter from TAS, and (4) the original Form 2848 signed by the client, which authorized me to substitute or add representatives.

For Letter 10, the CAF Unit stated the following reason for rejection of the Form 2848:

  • “A copy of your civil power of attorney, guardianship papers, or other legal documents that authorize you to sign Form 2848.”

For Letter 11, the CAF Unit stated the following reason for rejection of the Form 2848:

  • “You indicated you are delegating or substituting one representative for another. Please refer to Section 601.505(b)(2)(i), Statement of Procedural Rules, which you can find in Publication 216, Conference and Practice Requirements, for information on what you must send to us to make this delegation or substitution…”
  • “On Form 2848, you entered “student attorney”… . We need a copy of the Authorization for Student Tax Practice letter the Taxpayer Advocate Service sent you that authorizes you to practice before the IRS.

Additionally, our client delivered Letter 10 to us. The CAF Unit did not copy us on this Form 2848 rejection letter.

These letters also attach only the substitute Forms 2848; they did not attach our student authorization letter from TAS or original Form 2848. It seems that for both letters, the CAF Unit separated the original Form 2848 from the substitute Form 2848, along with misplacing the student authorization letter.

Actual Reasons for Rejections

These rejections appear to largely to result from two separate, but related reasons, which match the shared intuition among academic LITC directors. First, it appears that the CAF Unit separates the original Form 2848 from the substitute Form 2848 and treats them as separate submissions. It then rejects the substitute Form 2848 for lacking the original Form 2848 that grants authority to substitute, and then rejects the original Form 2848 if the prior student’s 130-day authority expired or was not attached (or else, the original Form 2848 is rejected as duplicative of one already accepted). Second, the CAF Unit often separates the substitute or original Form 2848 from the Student Authorization Letter, and rejects the submission for lack of an Authorization Letter.

Potential Solutions

The CAF Unit’s use of dated fax technology bears some responsibility for causing this problem. The ABA Tax Section facilitated a call in October 2018 between LITC directors and the CAF Unit director, who confirmed that the CAF Unit uses physical fax machines, rather than the e-fax process that every other IRS unit uses (at least, that I’ve worked with).

Understandably, the CAF Unit receives very many Forms 2848 each day, and has a limited workforce, and so our Forms 2848 can, quite literally, be lost in the shuffle. Most Form 2848 submissions are 2-3 pages long, consisting of the two pages of the Form 2848, plus a fax cover sheet. Our submissions are often six pages long, consisting of a substitute Form 2848, an original Form 2848, a student authorization letter, and a fax cover sheet. I suspect that a CAF Unit employee may pick up only the first two pages of a Form 2848 and then disregard the remainder.

Keith suggested during that call that the CAF Unit may wish to implement an e-fax solution to ensure that it receives the entire fax. I agree with that approach, and accordingly suggested this solution to the CAF Unit director. I also submitted a Systemic Advocacy Management System (SAMS) report in December, informing TAS of the above problems and proposing this as a solution. According to the systemic advocacy analyst that I spoke with, the issue is being assigned to an active task force within TAS. I encourage other academic clinicians to submit similar reports via SAMS so that the IRS has the data to support this problem’s existence.

Effect of Changes to IRS Transcripts 

Finally, recent changes to IRS Transcript procedures will further exacerbate the issues facing academic LITCs. Last fall, the Service announced that in January 2019, transcripts will no longer be faxed to practitioners who are not duly authorized in the CAF. Any transcripts would have to be mailed to the taxpayer’s last known address. Since then, the Service has stepped back somewhat from the position, allowing that if a telephone assistor could verify a Form 2848 over the phone, then the assistor could send transcripts to the practitioner’s secure mailbox on IRS e-Services. (The ABA Tax Section submitted commentary on these changes, which appear to have helped move the needle on this issue).

This is welcome news and ameliorates much of the concern for academic clinics. Nevertheless, students often encounter difficulties accessing IRS e-Services (for example, if they’ve never filed a federal income tax return or do not have loan or credit card information to verify identity).

Conclusion

Unwarranted Form 2848 rejections cause numerous negative consequences for low income taxpayers. The letters from the CAF Unit confuse our clients; they believe that some information is required of them or that their representative has erred. The rejections can also unnecessary delay the ability of student representatives to advocate on behalf of low income taxpayers, as IRS telephone assistors often refuse to speak with student representatives if their authority is not properly registered on the CAF. Additionally, forthcoming changes to transcript delivery will require that representatives are properly verified in CAF before issuing a transcript, with some helpful exceptions.

Finally, the CAF Unit takes, on average, two months to inform practitioners and/or taxpayers that a Form 2848 was rejected. The dates on the CAF Unit’s letters do not correspond to the actual dates of mailing. There is ordinarily a 45 day delay between the date on the letter and receipt in our Clinic. By the time students have faxed a Form 2848, learned of its rejection, and taken steps to fix it, the semester is essentially over. This problem can then repeat in subsequent semesters.

The CAF Unit should consider implementing an e-fax solution for its incoming correspondence. Because the largest source of error appears to be separation of the faxed pages, an e-fax solution would include the precise fax that the taxpayer intended to submit. I encourage the Service to consider these changes to improve taxpayer service and ensure taxpayers’ statutory right to representation before the IRS.

 

 

Patrick Thomas About Patrick Thomas

Patrick W. Thomas is the founding director of Notre Dame Law School’s Tax Clinic, in which he trains and supervises law students representing low-income clients in disputes with the Internal Revenue Service. Prior to joining the law school faculty in 2016, he received an ABA Tax Section Public Service Fellowship to work as a staff attorney for the LITC at the Neighborhood Christian Legal Clinic in Indianapolis.

Comments

  1. Great recommendation re e-fax. I hope they implement it.

    Our rejection rate has been a little bit better than yours but it’s still very annoying. I suspect most of us engage in continuous tweaking of our process to improve our chances. It took me awhile to realize that it would help clarify for the CAF Unit if, for substitution Forms 2848, we did the same things that most academic clinics are doing:
    (a) type in the title block at the top of page 2 “POA for taxpayer under previous Form 2848”
    (b) write at the top of page 1 of the original Form 2848 “Do not reprocess. This form is included to show authority to add/substitute representative”
    (c) specify in the cover letter that the Form 2848 is a substitution
    (d) put the cover letter and the special appearance authorization letter from the LITC Program Office between page 1 and page 2 of the new Form 2848.

    But it still isn’t enough. *sigh*

  2. As President Reagan said, “The most terrifying words in the English language are: I’m from the government and I’m here to help.”

    To add some perspective to this systemic problem – which, of course, the Taxpayer Advocate Service can’t work on right now because it is not funded – there are more than fifty LITC’s that receive the maximum $100,000 in federal matching funds to help finance their operations. Scores of other clinics receive lesser amounts.

    So the idea is to spend millions helping professors, tax law students and their low-income clients – then make life miserable for them by failures to process paperwork.

    Fax delivery by email is not free, but I’m sure the government gets a good rate on it. It is already in use elsewhere by IRS and other federal agencies. Shouldn’t a letter to some influential members of the Senate Finance or House Ways and Means Committee, accelerate a solution? Well, maybe not. Many in Congress are ignorant about technology.

  3. Norman Diamond says

    “Within a week or two, the practitioner should have access to the taxpayer’s information throughout the IRS, including transcripts through IRS e-Services.”

    I bet the practitioner doesn’t get access to all the transcripts. Sometimes different IRS employees see different transcripts. Sometimes a single IRS lawyer sees different transcripts for the same year in different Tax Court cases. How do you get to see all the transcripts?

    “Second, IRS telephone assistors may be unwilling to speak with the practitioner, even where the practitioner can fax a Form 2848 to them directly.”

    Sure — one reason should be, because as you said, the fax itself is a copy. I think a conference call should be able to overcome this. Let the IRS employee ask the taxpayer whatever questions are needed to verify identity, and then the IRS employee might be willing to speak with both persons.

    “While the CAF Unit usually dates its rejection letters soon after it receives the Form 2848, we do not actually receive those letters anywhere close to their dates. One letter took nearly three months to arrive.”

    The next time Tax Court rejects jurisdiction because a statutory notice didn’t reach the petitioner in time, please kindly present your expert testimony, please appeal, and please present your expert testimony to the appeals court.

  4. I have a durable power of attorney which entitles me to file the income tax. For 7 years there was never a problem but this year all over sudden the IRS is holding the refund – Code 1581 ! So I called and was told I had to submit a 2848 along with a copy of the PoA which was done. But the CAF unit claims they never received the 2848 etc., so refaxed it. It has been 3 months trying to resolved this problem and now I am being told by the IRS I should hire an attorney and go to court!!! I guess the refund will be held indefinitely!!!

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