See 2-4-102, MCA, for the definition of "rule." Because of the difficulty in determining whether an agency action meets the definition of rule, construe the exceptions narrowly "Rule" means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. The term includes the amendment or repeal of a prior rule.
The definition of rule is met by Department of Revenue Chief Legal Counsel writing, "... if you attempt to cross examine witnesses, issue discovery requests, take depositions, or enter legal briefs in the course of taxpayer representation, I think you have crossed the line (unauthorized practice of law) .."
The rule should go through the Adminsitrative Rule Making Process including an oral hearing.
Montana MCA 15-1-222. Taxpayer bill of rights. The department of revenue shall in the course of performing its duties in the administration and collection of the state's taxes ensure that: (2) the taxpayer has the right to hire a representative of the taxpayer's choice to represent the taxpayer's interests before the department or any tax appeal board. Click on link to read entire Taxpayer Bill of Rights.
Commission on Unauthorized Practice of Law memo provides that whether or not it is the practice of law, aciting as a lay representative if allowed by agenices or tribunals is permitted. Cick on link to read memo.
Notice of the time and place for a hearing shall be given to ...representatives
Any representative other than legal counsel must submit a written, signed statement authorizing the representative to act on the party's behalf.
Every party at a hearing shall have right to introduce evidence.
Any party appearing at a hearing may submit a written statement addressing factual or legal issues, including cites of legal authority ...
A primary objective of the resolution procedure is to make the dispute resolution as unintimidating and inexpensive as possible to parties appearing before the department.
BEFORE THE DEPARTMENT OF REVENUE
OF THE STATE OF MONTANA
In the matter of the petition of James C. ) Petition to Amend Administrative Rules
Wangerin, CPA to request a hearing on ) to Provide CPAs Right to Mediation,
Proposed amendments to ARM 1.3.216 ) Submit Tax Case on the Record,
1.3.231& 42.2.618 to give CPA right to ) Request Definite and Detailed
receive definite and detailed statement, ) Statement, and Represent Corporations
mediation, and submission on record ) Before Department of Revenue
1. Petitioner's name and address is James C. Wangerin, CPA; 301 ½ Main Street; Deer Lodge MT 59722.
2. The reason for petition is because of the following:
- An e-mail from Department of Revenue to James C. Wangerin, CPA:
o states: "... the Taxpayer Bill of Rights is not to the contrary. "Representative of choice" is clearly subject to reasonable restrictions ... even if those restrictions would interfere with the taxpayer's choice of representative";
o prevents non-attorney representatives from examining or cross examining witnesses;
o prevents non-attorney issuing discovery requests;
o prevents non-attorney taking depositions;
o prevents non-attorney entering legal briefs in the course of taxpayer representation; and
o threatens prosecution of non-attorneys for unauthorized practice of law.
- The Department of Revenue has refused taxpayer's request for mediation.
- The Department of Revenue has refused taxpayer's request to submit case based on the record.
(For more details go to http://kindergentlerworld.community.officelive.com/default.aspx )
James C. Wangerin, CPA intends to represent taxpayers before the Department of Revenue and any tax appeal board.
James C. Wangerin, CPA contends that the right to receive definite and detailed statement, right to mediation, and right to have the case decided upon the record are reasonable accommodations for “representative of choice” under the Taxpayer Bill of Rights .
Before representing any more clients before the Department of Revenue or any tax appeal board, James C. Wangerin, CPA must know that the Department of Revenue cannot control the outcome of the case by simply refusing mediation, refusing submission of case based on record , refusing discovery, and threatening James C. Wangerin, CPA with turning him in for prosecution for unauthorized practice of law.
3. Proposed Changes Regarding Discovery : CPAs and Enrolled Agents representing taxpayers should be allowed to request definite and detailed statement from Department of Revenue. The petition proposes amending 1.3.216 CONTESTED CASES, APPLICATION FOR MORE DEFINITE AND DETAILED STATEMENT by adding (2) CPAs or Enrolled Agents representing a taxpayer may provide Department of Revenue with taxpayer’s statement of facts and taxpayer's statement of position on legal issues. (3) CPAs or Enrolled Agents may apply for more definite and detailed statement as a response to taxpayer’s statement of facts and taxpayer's statement of position on legal issues.
Proposed Changes Regarding Submitting Case on the Record: CPAs and Enrolled Agents representing taxpayers should have the right to submit the case decided based on the record. The petition proposes amending 1.3.216 CONTESTED CASES, APPLICATION FOR MORE DEFINITE AND DETAILED STATEMENT by adding (4) CPA or Enrolled Agent shall have the right to have the case decided based on taxpayer’s statement of facts, taxpayer’s statement of position on legal issues, and Department of Revenue’s response to definite and detailed statement as a response to taxpayer’s statement of facts and taxpayer's statement of position on legal issues.
Proposed Changes Regarding Mediation: CPAs and Enrolled Agents representing taxpayers should have the right to mediation. The petition proposes amending 42.2.618 MEDIATION PROCEDURES by adding (6) If requested by the taxpayer or CPA or enrolled agent representing the taxpayer, the Department of Revenue must agree to participate in mediation.
Proposed Changes Regarding Representation: ARM 1.3.231 GENERAL PROVISIONS, REPRESENTATION should strike provision 2:
(2) A corporation appearing before an agency is considered a separate legal entity and may not appear on its own behalf through an agent other than an attorney. and replace it with (2) Taxpayers including Corporations may be represented by non-attorneys at informal proceedings, mediation, and in submission of case upon the record before the Department of Revenue and any tax appeal board (including State Tax Appeal Board).
4. The question presented in this Petition to Amend Administrative Rules is to ask for a hearing on the amendments proposed in 3 above. James C. Wangerin, CPA seeks a declaration that a hearing will be held in regards to the proposed amendments.
5. James C. Wangerin, CPA contends that reasonable accommodations must be made to allow CPAs to represent taxpayers per the right to hire representative of choice under the Montana Taxpayers Bill of Rights.
6. James C. Wangerin, CPA requests a ruling that a hearing will be held in regards to the administrative rule changes proposed in 3 above.
7. Petitioner knows of the following parties who are similarly affected or otherwise interested: one thousand clients that James C. Wangerin, CPA prepared Montana Income Tax returns for, any CPA that might be the taxpayer’s representative of choice under the Taxpayers Bill of Rights, every corporation that pays tax in Montana, and every taxpayer that is potentially subject to tax appeal process.
Dated this 26th day of June, 2009.
____________________________
James C. Wangerin, CPA
or www.helenair.com/articles/2009/06/30/state/85st_090630_cpa.txt