If you have ever received an email from an attorney or other professional person, you are well aware of the disclaimers that often appear at the end of such emails. Here is a link to a few samples. I personally have resisted using them. I never (well, hardly ever) give legal advice via email, and find most blanket disclaimers tedious.
In 2005 the U.S. Treasury Department adopted revisions to what is called Circular 230, a publication which governs ethical standards of conduct for tax attorneys, CPA’s and other professionals who interact with the Internal Revenue Service. In 2005, the IRS wanted to curb reliance by taxpayers on informal or off-the-cuff opinions from tax attorneys. In the event of a successful challenge to a taxpayer position by the IRS, a taxpayer might cite reliance on the informal opinion to abate a negligence penalty. The IRS wanted to take this excuse away where the opinion provided was not carefully considered by the provider.
Instead, in order for a taxpayer to have “penalty protection,” the tax attorney had to provide a “covered opinion,” which was highly detailed and costly to the taxpayer. There were severe sanctions authorized for a tax attorney who ran afoul of the covered opinion requirement. Many tax attorneys complained that the new Circular 230 rules brought a tax practice to the point where the complexity for following Circular 230’s ethical rules exceeded the complexity of the Internal Revenue Code itself.
This led to a proliferation by tax attorneys in the use of Circular 230 disclaimers on emails, faxes, and other written communications with clients, such as –
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.
The IRS recently decided that its 2005 revisions to Circular 230 were perhaps not such a great idea after all. In June 2014 it adopted these revisions to Circular 230, scaling back on the requirements regarding covered opinions. Reading between the lines, it appears the IRS also wants to discourage the indiscriminate use of disclaimers by tax attorneys that proliferated with its 2005 amendments to Circular 230. Apparently, the IRS does not appreciate being implicitly criticized on the millions of emails sent out by tax professionals each year.
I suspect it will be years before we see the Circular 230 disclaimer appear from most attorney emails. But one practitioner on the ACTEC listserv suggested (tongue-in-cheek) that he would replace his existing disclaimer with the following –
The IRS has made me remove the Circular 230 notice it formally made me put here. Under penalty of law you may not rely on, and no inference may be drawn from, the fact that I have deleted the Circular 230 notice the IRS used to make me put here but has now told me not to put here. Further explanation of this notice of non-notice is available at my usual hourly rate.