Montana Constitution Section 8 provides: Right of participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.

MCA 2-3-103(1) requires each public agency to adopt policies that permit and encourage public participation in agency decisions and also to assure adequate notice is given before a final agency action of significant public interest is taken.

Attorney General’s definition in 47 Mont. Op. No. 13 (see http://www.doj.mt.gov/resources/opinions1998/47-013.asp ) provides a definition of the term significant public interest limited by Mont. Code Ann. § 2-3-112(3), which excepts "a decision involving no more than a ministerial act" from the public participation mandates. A ministerial act is generally performed pursuant to legal authority, and requires no exercise of judgment.

There can be no doubt that there is widespread public interest in taxpayer rights under 15-1-222, MCA to acquire representation to represent the taxpayer in matters before the Department of Revenue or any tax appeal board. 

That creation of guidelines requires exercise of judgment is apparent in the writings of Karen Powell (Chairperson of State Tax Appeal Board) and C A Daw (Chief Legal Counsel for Department of Revenue).

C A Daw sent me the following e-mail: “Nice try, but no. The Department permits lay representation at its administrative processes. Having the taxpayer sign the representation letter does not, per se, constitute the unauthorized practice of law. Nor does the Taxpayer Bill of Rights insulate you if you attempt to practice law in the course of such taxpayer representation, as I believe you have done in prior cases before the Department. As previously stated, it is a fact dependent question when you cross the line and Karen Powell's letter lays out the line pretty well. Thus, if you attempt to examine or 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 and also deviated from professional norms for a CPA.”  (Bold and underline added for emphasis)

Karen Powell wrote, “The rules for representing a client before the State Tax Appeal Board are less clear than for providing representation at a county tax appeal board … The law specifies that 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. Thus it appears that the statutes are clear in allowing a CPA to represent a client in front of a CTAB. … There is statutory authority for an informal disposition of a contested case under MAPA that allows for increased latitude for presentations in a contested case. This procedure, however, is not generally used by the Tax Appeal Board … ”   (See http://stab.mt.gov/pdf/NonattorneyArticleCPA.pdf )

Following Department of Revenue’s refusal to participate in mediation, I requested an informal disposition of my client’s case. In regards to the case, Karen Powell sent a letter to my client stating, “Mr. Wangerin, an accountant, filed this complaint of your behalf. … there is potential liability for the unauthorized practice of law in Montana which Mr. Wangerin should consider before there is an attempt to represent a client before the Montana Tax Appeal Board … At the hearing, a party may be represented by an attorney or you may choose instead to be self-represented.”

In an e-mail to me, C A Daw wrote, “if you attempt to do the things which amount to the practice of law during your representation, individuals may well report your actions to the appropriate enforcement authorities. In this case, “unauthorized” as used in the “unauthorized practice of law,” means unlicensed.”

In the case of Commission on the Unauthorized Practice of Law  v. O'Neil, 334 Mont. 311 (2006), the Supreme Court, in upholding the District Court’s judgment filed January 10, 2005, set forth the following as indicia of the practice of law:
b. Selecting, drafting and completing legal papers, pleadings, agreements and other documents which affect the legal rights or responsibilities of others. Taking C A Daw’s definition of unauthorized practice of law it would be a criminal act for the taxpayer to prepare his own tax return. The tax return is certainly a document which affects the taxpayers legal rights or responsibilities. The taxpayer is usually not licensed to practice law.

The Department of Revenue and State Tax Appeal Board are exercising judgment in determining guidelines for CPAs representing taxpayers.

Administrative rules for Department of Revenue regarding public participation can be read by clicking on the following link: Public Participation Rules

Model Procedures for adopting administrative rules can be read by clicking on Administrative Rule Making Procedures