Request of Federal Employee to Appear on Behalf of His Daughter in IRS Audit

Opinion

June 14, 1977

77-37 MEMORANDUM OPINION FOR THE DIRECTOR OF THE EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS Request of a Federal Employee—Appearance on Behalf of His Daughter in IRS Audit

This is in response to your request for our views as to whether Mr. A, an employee in the office of a United States Attorney, may appear on behalf of his daughter in an Internal Revenue Service (IRS) office audit of her tax return. It appears that Mr. A prepared his daughter’s tax return based on information she supplied to him.

A Federal employee is prohibited by 18 U.S.C. § 205(2) from acting “as agent or attorney” for anyone, otherwise than in the proper dis­ charge of his official duties, before any agency or court in connection with any m atter in which the United States is a party or has a direct and substantial interest. This provision has not been construed to pro­ hibit a Federal employee from assisting another person in the prepara­ tion of a tax return, but it does generally prohibit a Federal employee from representing the taxpayer in subsequent administrative or judicial proceedings involving the tax return.

However, 18 U.S.C. § 205 contains an exception permitting em­ ployee to act as agent or attorney, with or without compensation, for his or her parents, spouse, or child, except in matters in which he or she has participated personally and substantially or are under his or her official responsibility. It does not appear that Mr. A participated as a Governm ent employee in matters relating to his daughter’s tax return. He is a collecting agent after a civil or criminal judgment or fine has been imposed, but he would not appear to have any “official responsi­ bility” within the meaning of 18 U.S.C. § 202(b) for IRS audits or other administrative proceedings relating to tax collection. Therefore, it is our opinion that Mr. A’s representation of his daughter in the audit and related administrative proceedings is permitted by 18 U.S.C. § 205. However, the statute and Departm ent o f Justice regulations require Mr. A to receive the approval of the U.S. Attorney before he appears on his daughter’s behalf. See 28 CFR 45.735-6(d).

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It is not apparent from the materials you sent to us whether Mr. A is employed as an attorney in the U.S. Attorney’s Office, so that the practice of law is his profession within the meaning of 28 C FR 45.735- 9(a). If so, his representation of his daughter would presumably consti­ tute outside practice of law, requiring the approval of the Deputy Attorney General under 28 CFR 45.735-9(c).

L eon U lm an

Deputy Assistant Attorney General Office o f Legal Counsel