It seems that every unenrolled preparer, the IRS’ name for tax preparers with no professional credential and thus limited representation rights, is promising “free audit defense” or “free representation” before the IRS in the event of an audit. I find these promises amusing for a number of reasons. First of all, unenrolled preparers have limited representation rights. As a result, if there is a big problem, and the case has to go to higher level or to collections, they cannot represent you. As such, their promise of “free representation” is only a promise to do what the law allows them to do, which is actually not very much. As such, they are promising to represent you if it is easy, or if there are no real problems, but once the going gets rough, they will be required to abandon you.
I have noticed that I have seen this promise made a lot more frequently this year than in years past. I now understand why. Next year, most unenrolled preparers (which is to say tax preparers who are not attorneys, CPAs or enrolled agents), will not be allowed to do audit defense, so this is really only a promise that they will defend you if you are audited this year!
What I find particularly strange about “free audit defense” is why would anyone want a plain vanilla tax preparer, a so-called “unenrolled preparer”, representing them in an audit? Audits are a serious business. Your representative needs to have real skills. If you are actually being audited, you need an advocate. You need someone who can understand and argue the many nuances of the Internal Revenue Code and the numerous regulations that arise from it. These skills are very different from those required simply to fill out a form. The tax code is complicated, and unenrolled preparers are not trained to deal with its complications.
As a lawyer, I cannot post an “audit defense guarantee”. First, “guarantee” is a word we are pretty much not allowed to use. It causes a lot of problems when used by a lawyer. Also, if I promise “audit defense” that means what it implies, that I am going to take care of everything. That is an open-ended commitment, and I do not have the luxury of saying to my client, just as the case gets rough, that I would love to help, but I am not allowed to. I not only have the highest level of representation rights within the IRS, but I also have representation rights in court!
I can say that I have never charged a client for tying up the loose ends on a tax case, even if the problem had nothing to do with me. I can also say that I could not imagine charging a tax client of mine for any of the limited tasks which an unenrolled preparer can perform. For tasks beyond that, I will use my best judgement. I have handled collection issues, which an unenrolled preparer cannot handle, and have not charged my clients. However, I handled those issues without much difficulty. I can say this, if I did charge a tax client of mine for a complicated representation matter, I would charge that client a whole lot less than I would charge somebody who came into my office in the middle of a mess somebody else made, and expected me to start from scratch in the middle of what has become a war.