§ 21-J:33-b — Understatement of Taxpayer's Liability by Tax Preparer

I. The term "tax preparer," as used in this section, shall include any person who prepares for compensation, or who employs one or more persons who prepare for compensation, any return of taxes administered by the department, or any claim for refund of such taxes. The preparation of a substantial portion of a return or claim for refund shall be treated as if it were the preparation of such return or claim for refund.
II. A person shall not be a "tax preparer" for purposes of this section merely because such person:
(a) Furnishes typing, reproducing, or other mechanical assistance;
(b) Prepares a return or claim for refund of the employer, or of an officer or employee of the employer, by whom he is regularly and continuously employed;
(c) Prepares as a fiduciary a return or claim for refund for any person; or
(d) Prepares a claim for refund for a taxpayer in response to any notice of deficiency issued to a taxpayer.
III. If any part of any understatement of liability with respect to any return or claim for refund is due to the willful neglect or intentional disregard of statutes and rules by a person who is a tax return preparer with respect to such return or claim, such person shall pay a penalty of $1,000 with respect to such return or claim.
IV. If any part of any understatement of liability with respect to any return or claim for refund is due to a willful attempt in any manner to understate the liability for a tax by a person who is a tax return preparer with respect to such return or claim, such person shall pay a penalty of $2,000 with respect to such return or claim. With respect to any return or claim, the amount of the penalty payable by a person by reason of this paragraph shall be reduced by the amount of the penalty paid by such person by reason of paragraph III.
V. For purposes of this section, the term "understatement of liability" means any understatement of the net amount payable with respect to any tax imposed or any overstatement of the net amount creditable or refundable with respect to any such tax. Except as otherwise provided in paragraph VI, the determination of whether or not there is an understatement of liability shall be made without regard to any administrative or judicial action involving the taxpayer.
VI. If at any time there is a final administrative determination or a final judicial decision that there was no understatement of liability in the case of any return or claim for refund with respect to which a penalty under this section has been assessed, such assessment shall be abated, and if any portion of such penalty has been paid the amount so paid shall be refunded to the person who made such payment as an overpayment of tax without regard to any period of limitation which would apply to the making of such refund.
VII. The amount of the understatement as defined in paragraph V shall be reduced by that portion of the understatement which is attributable to the tax treatment of any item with respect to which the relevant facts affecting the item's tax treatment are adequately disclosed in the return or in a statement attached to the return.
VIII. The commissioner shall have the authority under this chapter and RSA 80 to administer and enforce this section.
IX. Any person penalized under RSA 21-J:33-c shall not also be subject to any penalties under this section.

Legislative History

1991, 163:10, eff. May 27, 1991.