How to Select a Tax Attorney: A Complete Guide

If you have a letter from the IRS, the first selection question is not which tax attorney to hire. It is whether your matter needs an attorney at all, or whether a certified public accountant or an enrolled agent could represent you as well. All three may represent taxpayers before the IRS. They differ in where else they can appear, in how far their confidentiality protections reach, and in what happens if the matter turns out to carry criminal exposure. Those differences come from specific rules, and once you see them side by side, the choice for your situation is narrower than the field of advertisements suggests.

The Three Professionals, Side by Side

Question	Attorney	CPA	Enrolled agent
May represent you before the IRS?	Yes, if not suspended or disbarred, by filing a written declaration	Yes, on the same terms	Yes, if enrolled and not suspended or disbarred
Confidentiality for tax advice in a civil IRS matter?	attorney-client privilege	a statutory protection comparable to privilege, within limits	the same statutory protection
Confidentiality if the matter is criminal?	attorney-client privilege	the statutory protection does not apply	the statutory protection does not apply
May appear in the U.S. Tax Court?	Yes, on admission with a bar certificate	only after passing the Court's written examination	only after passing the Court's written examination

The first row comes from Treasury’s rules on practice before the IRS, which allow any attorney, any CPA, and any enrolled agent who is “not currently under suspension or disbarment” to practice before the agency (31 CFR § 10.3). The other rows are explained below. The table is the decision in compressed form: for an ordinary audit or collection matter with no criminal concern, any of the three may be the right choice, and experience matters more than the title. Where the matter could go to Tax Court or could become criminal, the title starts to matter.

How Far Confidentiality Reaches

Federal law extends a protection like attorney-client privilege to other federally authorized tax practitioners. Under 26 U.S.C. § 7525, the confidentiality protections that apply to communications with an attorney about tax advice also apply to communications with “any federally authorized tax practitioner,” to the extent the communication would be privileged if made to an attorney (26 U.S.C. § 7525).

The statute defines its terms narrowly. A “federally authorized tax practitioner” is a person authorized under federal law to practice before the IRS where that practice is federally regulated, and “tax advice” is advice within the scope of that person’s authority to practice. Advice on matters outside that scope is not covered simply because a tax professional gave it.

Two limits are written into the statute, and they drive the selection decision:

The protection “may only be asserted in” a “noncriminal tax matter before the Internal Revenue Service” and a “noncriminal tax proceeding in Federal court brought by or against the United States.”
It does not apply to written communications made “in connection with the promotion of the direct or indirect participation of the person in any tax shelter.”

In practice, what you tell a CPA or enrolled agent about a civil dispute can be protected, but if the matter becomes criminal, that protection is not available in the criminal matter. That single limit is the clearest legal reason the choice of representative changes when there is any possibility of criminal exposure.

So ask every candidate, including the attorney, the same question: if this matter turned criminal, what would happen to the confidentiality of what I have told you, and what would you recommend we do now? A CPA or enrolled agent who answers by recommending that you speak with an attorney first is not avoiding the work. He or she is applying the rule correctly.

Who Can Follow the Case to Tax Court

If your dispute ends up in the United States Tax Court, admission to that court is a separate requirement. Under the Court’s Rule 200, an attorney applies with a current certificate of good standing from the bar of the Supreme Court or the highest court of a state, the District of Columbia, or a U.S. territory. An applicant who is not an attorney must, as a condition of admission, “satisfy the Court, by means of a written examination given by the Court,” of the qualifications to represent others (Tax Court Rule 200).

For selection, the question is simple and worth asking early: are you admitted to practice before the Tax Court? For an attorney, the answer tells you whether he or she has taken the step of applying. For a CPA or enrolled agent, a yes means passing the Court’s examination. If the answer is no, ask who would represent you if your case reached the Court, and when that person would join. For a non-attorney, admission is not something that can be arranged quickly: the Court’s rule provides that written examinations “will be held no less often than every 2 years,” and that the Court announces each examination “at least 6 months prior to the date.” A CPA or enrolled agent who is not already admitted cannot plan to become admitted in time for a petition that is due in 90 days. Changing representatives midway through a dispute costs time, which is the one thing IRS deadlines do not give back.

Which Notice Do You Have?

IRS notices start specific clocks. Bring every notice, with the envelope, to every consultation, and ask each candidate to name the deadline, the event that starts it, and the date he or she calculates.

A notice of deficiency

A notice of deficiency opens the path to Tax Court. Under 26 U.S.C. § 6213(a), the taxpayer may petition the Tax Court “within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency … is mailed,” not counting a Saturday, Sunday, or District of Columbia legal holiday as the last day (26 U.S.C. § 6213). The same section also protects you while you contest the deficiency: except in listed situations, no assessment and “no levy or proceeding in court for its collection shall be made, begun, or prosecuted” until the notice has been mailed, “nor until the expiration of such 90-day or 150-day period,” and, “if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final.” The trigger is the mailing, which is why the envelope matters.

That protection is part of the selection decision. A timely Tax Court petition lets you dispute the deficiency before it is assessed and collected. A representative who lets the 90 days pass, or who does not explain what filing would preserve, may leave you with fewer options. Ask each candidate what route he or she would take after a notice of deficiency, why, and who would sign and file the petition if a petition is the route.

A short example shows why the count should come from the mailing date. If a notice addressed to a taxpayer in the United States is mailed on a Monday, the 90-day period runs from that mailing date, not from the day the letter was opened; if the last day falls on a weekend or a District of Columbia holiday, the statute does not count it as the last day. The candidate’s job is to state the date in writing. Your job is to compare that date across candidates.

A notice of intent to levy and your hearing rights

Before a levy, the IRS must notify you of your right to a hearing “not less than 30 days before the day of the first levy,” and the notice must describe “the right of the person to request a hearing during the 30-day period.” After the hearing, “the person may, within 30 days of a determination under this section, petition the Tax Court for review” (26 U.S.C. § 6330). If a bankruptcy case prevents the filing, the petition period “shall be suspended for the period during which the person is so prohibited from filing such a petition, and for 30 days thereafter.” A taxpayer in bankruptcy who also has a collection dispute needs a representative who can see both proceedings at once.

The Supreme Court addressed the last of those deadlines in Boechler, P.C. v. Commissioner, holding that the 30-day limit to petition for review of a collection due process determination “is a nonjurisdictional deadline subject to equitable tolling” (Boechler v. Commissioner). That decision concerns that one deadline. It does not make any IRS deadline safe to miss, and it does not decide how other deadlines are treated.

A joint-return liability you believe belongs to your spouse

If you filed jointly and believe you should not be liable for your spouse’s or former spouse’s tax, 26 U.S.C. § 6015 provides several kinds of relief. Equitable relief under subsection (f), available where relief under subsections (b) or (c) is not, may be requested for an unpaid liability “before the expiration of the applicable period of limitation under section 6502,” or for a paid liability “during the period in which the individual could submit a timely claim for refund or credit of such payment” (26 U.S.C. § 6015). The timing is tied to those periods, not to a fixed number of years from a collection notice. If someone tells you that you have missed the window, ask which subsection and which period he or she means.

Relief for one spouse can leave the liability with the other, which raises a representation question covered below.

If Criminal Exposure Is Possible

Because the § 7525 protection does not reach criminal matters, the choice of representative carries more weight if any of these is true: you have unreported income or accounts you are worried about, someone has suggested fraud, or you have been contacted by IRS Criminal Investigation. In any of those situations:

Ask whether the candidate would handle the matter or recommend that you engage an attorney first.
If you already work with an accountant, ask the attorney how the accountant’s work should be arranged going forward, given that the accountant’s own protection does not reach a criminal matter.
Ask whether the attorney has represented clients in criminal tax investigations, and in what role, since civil controversy experience and criminal experience are different things.

If investigators contact you, ask to speak with an attorney before answering questions about the matter.

If Cost Is the Barrier

Free or low-cost representation exists for qualifying taxpayers. The IRS describes Low Income Taxpayer Clinics this way: “LITCs can represent you before the IRS or in court on audits, appeals, tax collection matters, and other tax disputes. Services are provided for free or for a small fee.” To qualify, “generally a taxpayer’s income must be below a certain threshold, and the amount in dispute with the IRS is usually less than $50,000,” and the clinics, while partly funded by the IRS, are “completely independent of the IRS” (IRS, Low Income Taxpayer Clinics). The IRS also describes the program as serving taxpayers who are low-income “or speak English as a second language.” A clinic is a real option to compare against private representation, not a last resort. Ask about eligibility before assuming you do not qualify.

Whom the Representative Represents

Tax matters can involve spouses, business owners, and businesses whose interests are not always the same.

Spouses on a joint return. If one spouse may seek relief under § 6015, the two spouses’ interests may conflict, because relief for one can leave the liability with the other. Ask whether the candidate would represent both of you, and how he or she would handle that conflict if it appeared.
Owners and businesses. When an owner’s position and the business’s differ, the engagement letter should say which one the representative works for.
The preparer as representative. If the candidate prepared the return the IRS is now questioning, his or her own work is part of the review. That is not disqualifying, but it is a reason to ask how the candidate would handle a question about how the return was prepared.

Checking the Candidate

The three credentials are confirmed in three different places. An attorney’s license is confirmed through the state bar; a CPA’s through the state board of accountancy that issued the license; an enrolled agent’s through his or her enrollment information, which you can ask for directly. None of those records measures experience with your kind of dispute. Because practice before the IRS depends on not being “currently under suspension or disbarment,” ask every candidate directly whether he or she has ever been suspended or disbarred from practice before the IRS.

For experience, ask about your stage: how many examinations, collection matters, or Tax Court cases the candidate handled recently, and what his or her role was in each. A description of the last matter like yours, in some detail and without naming the client, tells you more than a number does.

Reading the Engagement

Ask how each candidate would price the work: hourly, by fixed fee for a defined stage, or a combination. Then look at coverage:

Does the fee cover the examination only, or also an administrative appeal, a collection alternative, and a Tax Court petition?
If the IRS expands its review to other years, is that included?
If amended or unfiled returns must be prepared, who prepares them and at what cost?
If you end the engagement, what do you owe?

Ask for the scope in writing before work begins.

Three Situations, Three Likely Choices

An audit of a single year, no concern about fraud, and a dispute over documentation. Any of the three professionals may be appropriate. Compare experience with examinations like yours, who will do the work, and the fee scope.

A notice of deficiency you intend to contest in court. Confirm Tax Court admission before engaging anyone, and count the days from the mailing date on the envelope.

Unreported income, a fraud suggestion, or contact from Criminal Investigation. Speak with an attorney first, because the statutory protection for other practitioners does not reach a criminal matter, and ask how any existing accountant should be involved from that point on.

In each situation, the comparison comes down to three written answers: the deadline calculated from the notice itself, where each candidate’s protections stop, and who would carry the matter if it moved to the next stage. Side by side, those answers are a firmer basis for the choice than credentials alone.

Legal disclaimer: This guide provides general information about selecting a tax representative and about rules that bear on that choice. It is not legal or tax advice. Deadlines run from the dates on your notices; speak with a qualified representative promptly.