Final regulations amending on Circular 230 were issued June 9 and took effect June 12. The regulations and, in particular, eliminated the need to follow a separate set of standards regarding “covered opinions” when providing written advice to clients. It was the covered opinion provision that led to the Circular 230 disclaimer found in the emails of virtually all practitioners.
No More. At a recent tax conference, IRS chief counsel William J. Wilkins told practitioners in a keynote address that the “Circular 230 disclaimer is not merely dead, it's really most sincerely dead. So please omit.” So, NSA members are advised to change their email settings and eliminate the Circular 230 disclaimer.
According to Karen Hawkins, head of the IRS Office of Professional Responsibility, the old covered opinion provision has been replaced with a new Circular 230 Section 10.37 on due diligence governing written advice. The new provision is a “principles-based regulation. It is intended to be very broad, it is intended to leave a lot of leeway, both at your end and at my end, in terms of how we analyze this,” Hawkins said.
The provision requires practitioners to make reasonable factual and legal assumptions, she said. “You have to put reasonable amounts of effort into ascertaining what the relevant facts are. You have to reasonably consider all the relevant facts and circumstances with respect to what you know or what you should know.” Practitioners may not rely on representations from a client or another individual if the reliance cannot be deemed reasonable, she said.
