Guidance Necessary To Facilitate Electronic Tax Administration-Updating of Section 7216 Regulations, 72954-72964 [E5-7018]

Agencies

• Internal Revenue Service
• DEPARTMENT OF THE TREASURY

[Federal Register Volume 70, Number 235 (Thursday, December 8, 2005)]
[Proposed Rules]
[Pages 72954-72964]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-7018]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 301

[REG-137243-02]
RIN-1545-BA96


Guidance Necessary To Facilitate Electronic Tax Administration--
Updating of Section 7216 Regulations

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document contains proposed regulations to update the 
rules regarding the disclosure and use of tax return information by tax 
return preparers. The proposed regulations announce new and additional 
rules for taxpayers to consent electronically to the disclosure or use 
of their tax return information by tax return preparers. The proposed 
rules provide guidelines for tax return preparers using or disclosing 
information obtained in the process of preparing income tax returns.

DATES: Written or electronically generated comments must be received by 
March 8, 2006. Outlines of topics to be discussed at the public hearing 
scheduled for April 4, 2006, in the Auditorium of the Internal Revenue 
Building at 1111 Constitution Avenue, NW., Washington, DC 20224, must 
be received by March 14, 2006.

ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-137243-02), room 
5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand-delivered Monday through 
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
137243-02), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue, NW., Washington, DC, or sent electronically, via the IRS 
Internet site at https://www.irs.gov/regs or via the Federal eRulemaking 
Portal at https://www.regulations.gov (IRS-REG-137243-02). The public 
hearing will be held in the IRS Auditorium, Internal Revenue Building, 
1111 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
Dillon Taylor, at (202) 622-4940; concerning submissions of comments, 
LaNita Van Dyke of the Publications and Regulations Branch at (202) 
622-7180 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background

    This document contains proposed amendments to the Regulations on 
Procedure and Administration (26 CFR Part 301) under section 7216 of 
the Internal Revenue Code (Code). Section 7216 imposes criminal 
penalties on tax return preparers who make unauthorized disclosures or 
uses of information furnished to them in connection with the 
preparation of an income tax return. In addition, tax return preparers 
are subject to civil penalties under section 6713 for disclosure or use 
of this information unless an exception under the rules of section 
7216(b) applies to the disclosure or use.
    Section 7216 was enacted by section 316 of the Revenue Act of 1971, 
Public Law 92-178 (85 Stat. 529, 1971). In 1988, Congress modified the 
section by limiting the criminal sanction to knowing or reckless 
unauthorized disclosures. Public Law 100-647, (102 Stat. 3749, 1988). 
At the same time, Congress enacted the civil penalty that is now found 
in section 6713. Public Law 100-647, section 6242(a) (102 Stat. 3759, 
1988). In 1989, Congress further modified section 7216, directing the 
Treasury Department to issue regulations permitting disclosures of tax 
return information for quality or peer reviews. Public Law 101-239, 
7739(a) (102 Stat. 3759, 1989).
    The Treasury Department and the IRS proposed regulations under 
section 7216 on December 20, 1972 (37 FR 28070). Final regulations were 
issued on March 29, 1974 (39 FR 11537). These regulations are divided 
into three parts: Section 301.7216-1 for general provisions and 
definitions; Section 301.7216-2 for disclosures and uses that do not 
require formal taxpayer consent; and section 301.7216-3 for disclosures 
and uses that require formal taxpayer consent. Since the regulations 
were adopted in 1974, the Treasury Department and the IRS have amended 
Sec.  301.7216-2 on occasion, but Sec. Sec.  301.7216-1 and 301.7216-3 
have remained unchanged.
    The current regulations were written in a paper filing era. They do 
not address current common industry practices, such as electronic 
preparation or filing of tax returns. The regulations are silent on 
taxpayers' consent to the disclosure or use of tax return information 
in an electronic environment. The proposed regulations address these 
issues.
    The proposed regulations also contain other modifications to 
reflect the principle that taxpayers may provide knowing, informed, and 
voluntary consent to a tax return preparer's use of tax return 
information for purposes other than tax return preparation. While the 
ability of a tax return preparer to solicit consent from a taxpayer 
remains limited under certain circumstances, such as when the taxpayer 
has already rejected a substantially similar request for consent, these 
regulations allow a tax return preparer to solicit a taxpayer's consent 
to use tax return information under certain circumstances that the 
existing regulations currently prohibit. For example, these proposed 
regulations allow tax return preparers to obtain consents to use tax 
return information for solicitation of services or facilities furnished 
by any person rather than limiting solicitations to the services or 
facilities offered by the tax return preparer or member of the tax 
return preparer's ``affiliated group.''

[[Page 72955]]

    Concurrently, with publication of these proposed regulations, the 
IRS is publishing a notice containing a proposed revenue procedure that 
would provide guidance to tax return preparers on the format and 
content of consents to disclose and consents to use tax return 
information under Sec.  301.7216-3. The proposed revenue procedure 
would also provide specific guidance for electronic signatures when a 
taxpayer executes an electronic consent to the disclosure or use of the 
taxpayer's tax return information.

Explanation of Provisions

1. Section 301.7216-1 Penalty for Disclosure or Use of Tax Return 
Information

    The regulations revise and clarify several definitions and clarify 
the scope of the rules. For example, section 7216, rather than section 
7701(a)(36) (defining income tax return preparer) or the privacy 
provisions of Title V of the Gramm-Leach-Bliley Act, Public Law 106-
102, (113 Stat. 1338, GLBA), governs the disclosure and use of tax 
return information by tax return preparers. The GLBA governs the use 
and disclosure of customer information by financial institutions. Any 
requirements of the GLBA that may be applicable to tax return preparers 
do not supersede, alter, or affect the requirements of section 7216 and 
Sec. Sec.  301.7216-1 through 301.7216-3. Similarly, the requirements 
of section 7216 and Sec. Sec.  301.7216-1 through 301.7216-3 do not 
nullify any requirements or restrictions of the GLBA, which are in 
addition to the requirements or restrictions of section 7216 and 
Sec. Sec.  301.7216-1 through 301.7216-3.
A. Tax Return Preparer
    The definition of tax return preparer is revised to distinguish it 
from the definition of income tax return preparer in section 
7701(a)(36); tax return preparers subject to section 7216 include a 
broader group of persons than income tax return preparers defined in 
section 7701(a)(36). Some persons who are excluded from the definition 
of an income tax return preparer under section 7701(a)(36), for 
example, persons providing secretarial services, are tax return 
preparers under section 7216, as defined by Sec.  301.7216-1(b)(2). 
Some of the examples and exclusions have been revised to address common 
scenarios.
B. Tax Return Information
    The revised definition of tax return information clarifies that the 
term encompasses a broader range of information than what taxpayers 
literally furnish to a tax return preparer. The taxpayer's entitlement 
to a refund and the amount of the refund are both tax return 
information. Similarly, information the IRS furnishes a tax return 
preparer with respect to the processing of a return, including the 
acknowledgment of acceptance of an electronically-filed return, is tax 
return information, even though the taxpayer does not communicate that 
information to the tax return preparer.
C. Use and Disclosure
    The proposed regulations add a definition of the term ``use'' to 
clarify application of that term in the context of electronic 
preparation and filing. The proposed regulations add a definition of 
``disclosure'' to clarify that the term should be broadly construed. 
The proposed regulations provide that to the extent that a taxpayer's 
use of a hyperlink results in the transmission of tax return 
information, that transmission of tax return information is a 
disclosure.

2. Section 301.7216-2 Permissible Disclosures or Uses Without Consent 
of the Taxpayer

    Proposed Sec.  301.7216-2 provides exceptions to the general rule 
of section 7216(a) that imposes criminal penalties on tax return 
preparers who make unauthorized disclosures or uses of tax return 
information. A tax return preparer may disclose or use tax return 
information as Sec.  301.7216-2 permits without obtaining consent from 
a taxpayer. A number of subsections dealing with disclosures or uses 
without consent are proposed in substantially their current form. Some 
subsections are renumbered to achieve a more logical ordering, and some 
subsections have been proposed with minor changes to the current 
language to refine the rules or promote clarity. Some subsections 
addressing disclosures between tax return preparers have been changed 
to reflect new rules.
A. Proposed Changes to Specifically Account for Technological, Legal, 
and Other Developments
    (1) Proposed Sec.  301.7216-2(b) provides that disclosures to the 
IRS that will facilitate electronic tax administration are authorized 
without the taxpayer's prior written consent. Disclosures that will 
facilitate electronic tax administration include IRS requests for tax 
return information to investigate compliance with electronic filing 
rules or to evaluate the effectiveness of electronic filing programs.
    (2) Proposed Sec.  301.7216-2(d) expands current Sec.  301.7216-
2(h), which authorizes disclosures to tax return preparers who process 
tax return information. The proposed regulations provide that 
disclosures between tax return preparers are authorized when the 
disclosures (i) assist in the preparation of a return, (ii) as long as 
the services provided by the recipient of the disclosure are not 
substantive determinations or advice affecting a taxpayer's reported 
tax liability; and (iii) as long as the disclosure is to a tax return 
preparer located in the United States. The proposed regulations clarify 
that disclosures to other tax return preparers for substantive 
determinations or advice require the taxpayer's prior written consent. 
The proposed regulations also provide that tax return preparers' 
disclosures to other tax return preparers located outside of the United 
States require the taxpayer's prior written consent. The written 
consent for disclosure of tax return information outside of the United 
States is needed because it is difficult for the Secretary to pursue a 
criminal action under section 7216 against a tax return preparer 
located outside of the United States or to collect a civil penalty 
assessed under section 6713 from a tax return preparer located outside 
the United States. Proposed Sec.  301.7216-2(d) also provides that a 
tax return preparer may disclose tax return information to contractors 
performing certain auxiliary services in connection with tax return 
preparation. For the disclosure to fall within this exception, the tax 
return preparer must present the individuals receiving the disclosure 
with a written notice informing them that section 7216 applies to them 
and describes the requirements and penalties of section 7216. 
Contractors to whom disclosures are made pursuant to this provision are 
tax return preparers pursuant to Sec.  301.7216-1(b)(2)(i)(D).
    (3) Proposed Sec.  301.7216-2(f) amends current Sec.  301.7216-
2(c), regarding disclosures pursuant to an order of a court or an 
administrative order, demand, summons or subpoena issued by a Federal 
or State agency, by also authorizing disclosures made pursuant to a 
subpoena issued by the United States Congress. In addition, the IRS is 
aware that most state accountancy boards work in conjunction with the 
American Institute of Certified Public Accountants' (AICPA) 
Professional Ethics Executive Committee, and state and local bar 
associations to investigate potential ethical violations by certified 
public accountants who are members of the AICPA. The proposed amendment

[[Page 72956]]

authorizes disclosures to the AICPA made pursuant to an ethics 
violation investigation of the tax return preparer. The proposed 
amendment authorizes disclosures made pursuant to a formal demand from 
the Public Company Accounting Oversight Board.
    (4) Proposed Sec.  301.7216-2(g), governing disclosures for use in 
Treasury investigations or court proceedings, amends current Sec.  
301.7216-2(d), which limits disclosures to IRS investigations and court 
proceedings. This change is necessary because a function within the 
Treasury Department, but outside of the IRS, may handle some 
investigations that will require a disclosure of tax return 
information. Disclosures are also authorized to officers of a court in 
court proceedings in which a taxpayer-client of a return preparer is a 
party. The proposed regulations clarify that the tax return preparer 
need not be a party to a court proceeding for a disclosure to be 
authorized under this section.
    (5) Proposed Sec.  301.7216-2(k) expands the current provision in 
Sec.  301.7216-2(k) governing the preparation or audit of State or 
local tax returns to allow the use of tax return information to assist 
in the preparation of any tax return of the taxpayer under the law of a 
country other than the United States. Disclosures are also expanded to 
allow for the preparation of tax returns under the law of another 
country to the same extent that disclosures are allowed for the 
preparation and filing of a Federal tax return.
    (6) Proposed Sec.  301.7216-2(o) addresses the use of tax return 
information to prepare statistical compilations and the use of the 
statistical compilations themselves. Rev. Rul. 79-114 (1979-1 C.B. 
441), holds that the current regulations prohibit a tax return 
preparer's use of tax return information to prepare anonymous 
statistical compilations unless the affected taxpayers individually 
consent. Section 301.7216-2(o) will obsolete Rev. Rul. 79-114. Section 
301.7216-2(o) will permit the use of tax return information to prepare 
anonymous statistical compilations for limited purposes related to 
management or support of the tax return preparer's business. The tax 
return information will remain protected from any other use and 
disclosure outside the limited purposes of this proposed section.
B. Other Changes to Existing Provisions
    (1) Proposed Sec.  301.7216-2(h) amends current Sec.  301.7216-
2(e), which authorizes attorneys and accountants to disclose tax return 
information to third parties in the normal course of rendering legal or 
accounting services if the taxpayer expressly or impliedly consents to 
the disclosure. The proposed regulations remove the requirement that 
the taxpayer's express or implied consent is necessary before these 
types of disclosures can be made because implied consent would exist in 
virtually every situation when an attorney or accountant is required to 
disclose tax return information to a third party in the normal course 
of providing legal or accounting services to a taxpayer. The proposed 
regulations provide that these disclosures are authorized unless the 
taxpayer directs otherwise.
    (2) Proposed Sec.  301.7216-2(i) amends current Sec.  301.7216-
2(f), which provides that corporate fiduciaries are authorized to 
disclose tax return information to a taxpayer's attorney, accountant, 
or investment advisor only with the taxpayer's express or implied 
consent. As with disclosures made by attorneys and accountants, a 
taxpayer will generally give implied consent to disclosures by 
corporate fiduciaries to a taxpayer's attorney, accountant, or 
investment advisor. The proposed regulations remove the express or 
implied consent requirement, and provide instead that disclosures are 
authorized unless the taxpayer directs otherwise.
    (3) Proposed Sec.  301.7216-2(c) amends current Sec.  301.7216-
2(i), regarding disclosures by an officer, employee, or member of a tax 
return preparer to another officer, employee, or member of the same tax 
return preparer to perform services that assist in the preparation of, 
or assist in providing auxiliary services in connection with the 
preparation of, the tax return of a taxpayer. The proposed regulations 
provide that these disclosures or uses are authorized without the 
taxpayer's written consent only if the officer, employee, or member to 
whom the information is disclosed is located within the United States. 
The written consent for disclosure of tax return information outside of 
the United States is needed because it is difficult for the Secretary 
to pursue a criminal action under section 7216 against a tax return 
preparer located outside of the United States or to collect a civil 
penalty assessed under section 6713 from a tax return preparer located 
outside the United States. Therefore, a taxpayer's written consent is 
required before a tax return preparer can disclose a taxpayer's tax 
return information to another tax return preparer located outside of 
the United States.
    (4) Proposed Sec.  301.7216-2(q) amends current Sec.  301.7216-
2(n), regarding disclosures to report the commission of a crime, by 
clarifying that penalties for disclosure shall not apply to disclosures 
necessary to report a crime, nor to any disclosures necessary for the 
investigation and prosecution of the crime.
3. Proposed Sec.  301.7216-3: Disclosures and Uses Authorized by 
Taxpayer Consent
    Significant revisions are proposed under Sec.  301.7216-3 to 
address a number of issues concerning the application of these rules in 
the context of electronic return preparation and filing. The Treasury 
Department and the IRS propose these amendments to protect taxpayers' 
tax return information, and to ensure that taxpayers are fully informed 
when providing consent to disclose or use tax return information.
A. Restrictions Regarding the Offering of Certain Services
    The current regulations restrict use of tax return information for 
the solicitation of services or facilities in matters not related to 
the IRS to those ``currently offered'' by the tax return preparer or 
members of the tax return preparer's ``affiliated group,'' within the 
meaning of section 1504. Because taxpayers must consent to any use or 
disclosure connected with the solicitation, taxpayer privacy interests 
are adequately protected regardless of whether a service is currently 
offered or whether a business offering a service to the taxpayer is a 
member of a tax return preparer's affiliated group. The currently-
offered and affiliated-group rules restrict the ability of taxpayers to 
control and direct the use of their own tax return information as they 
see fit. The proposed regulations adopt an approach that ensures 
taxpayers are provided with a meaningful opportunity to consent to the 
use and disclosure of their tax return information. Accordingly, the 
proposed rules revoke the affiliated-group and currently-offered 
restrictions.
    The current regulations do not place limits on tax return 
preparers' ability to obtain consents to use tax return information to 
solicit business in matters related to the IRS. The proposed 
regulations remove the distinction between matters related to the IRS 
and matters not related to the IRS, and thereby make uniform the 
requirements regarding consents to use tax return information to 
solicit business.
B. Form of Consent
    The proposed regulations provide that the IRS may provide guidance, 
by revenue procedure, on the form and content of a taxpayer's consent. 
The

[[Page 72957]]

proposed regulations also allow a taxpayer to use a single document to 
consent to multiple uses of their tax return information, or use a 
single document to consent to multiple disclosures of their tax return 
information, provided certain requirements are met. Although the 
proposed regulations permit a single document to authorize multiple 
uses or multiple disclosures, the taxpayer must affirm separately each 
use or disclosure within the single document. In addition, because the 
Treasury Department and the IRS believe taxpayers should be alerted to 
the significant difference between consenting to disclosures to third 
parties and consenting to uses of tax return information by their tax 
return preparers, the proposed regulations provide that a single 
document cannot authorize both uses and disclosures; rather, one 
document must authorize uses and another separate document must 
authorize disclosures.

Proposed Effective Date

    These regulations are proposed to apply on the date that is 30 days 
after the final regulations are published in the Federal Register.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in Executive Order 
12866. Therefore, a regulatory assessment is not required. It also has 
been determined that section 553(b) of the Administrative Procedure Act 
(5 U.S.C. chapter 5) does not apply to these regulations, and, because 
these regulations do not impose a collection of information on small 
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not 
apply. Pursuant to section 7805(f), this notice of proposed rulemaking 
will be submitted to the Chief Counsel for Advocacy of the Small 
Business Administration for comment on their impact.

Comments and Public Hearing

    Before these regulations are adopted as final regulations, 
consideration will be given to any written comments and electronic 
comments that are submitted timely to the IRS. The Treasury Department 
and the IRS specifically request comments on the following: Whether it 
is necessary to have an exception to section 7216 for disclosures made 
to contractors as provided in proposed Sec.  301.7216-2(d)(2), and, if 
so, how should the regulations protect the information from being used 
or disclosed by the contractors; and what should constitute an 
electronic signature on electronic consents. In addition, the IRS and 
Treasury Department specifically request comments on the clarity of the 
proposed regulations and how they can be made easier to understand. All 
comments will be available for public inspection and copying.
    The public hearing is scheduled for April 4, 2006, at 10 a.m., and 
will be held in the Auditorium, Internal Revenue Building, 1111 
Constitution Avenue, NW., Washington, DC. Due to building security 
procedures, visitors must enter at the Constitution Avenue entrance. 
All visitors must present photo identification to enter the building. 
Visitors will not be admitted beyond the immediate entrance area more 
than 30 minutes before the hearing starts. For information about having 
your name placed on the building access list to attend the hearing, see 
the FOR FURTHER INFORMATION CONTACT section of this preamble.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who 
wish to present oral comments at the hearing must submit written or 
electronic comments by March 8, 2006, and submit an outline of the 
topics to be discussed and the time to be devoted to each topic by 
March 14, 2006. A period of 10 minutes will be allocated to each person 
for making comments. An agenda showing the scheduling of the speakers 
will be prepared after the deadline for receiving outlines has passed. 
Copies of the agenda will be available free of charge at the hearing.

Drafting Information

    The principal authors of the regulations are Brinton T. Warren, 
Bridget E. Tombul, and Dillon Taylor of the Office of the Associate 
Chief Counsel (Procedure and Administration), Administrative Provisions 
and Judicial Practice Division.

List of Subjects in 26 CFR Part 301

    Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income 
taxes, Penalties, Reporting and recordkeeping requirements.

Proposed Amendment to the Regulations

    Accordingly, 26 CFR part 301 is proposed to be amended as follows:

PART 301--PROCEDURE AND ADMINISTRATION

    Paragraph 1. The authority citation for part 301 continues to read, 
in part, as follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. Section 301.7216-0 is added to read as follows:


Sec.  301.7216-0  Table of contents.

    This section lists captions contained in Sec. Sec.  301.7216-1 
through 301.7216-3.


Sec.  301.7216-1  Penalty for disclosure or use of tax return 
information.

    (a) In general.
    (b) Definitions.
    (c) Gramm-Leach-Bliley Act.
    (d) Effective date.


Sec.  301.7216-2  Permissible disclosures or uses without consent of 
the taxpayer.

    (a) Disclosure pursuant to other provisions of Internal Revenue 
Code.
    (b) Disclosure to facilitate electronic tax administration.
    (c) Disclosures or uses for preparation of a taxpayer's return.
    (d) Disclosures to other tax return preparers.
    (e) Disclosure or use of information in the case of related 
taxpayers.
    (f) Disclosure pursuant to an order of a court, or an 
administrative order, a demand, summons or subpoena which is issued in 
the performance of its duties by a Federal or State agency, the United 
States Congress, a professional ethics board, or the Public Company 
Accounting Oversight Board.
    (g) Disclosure for use in Treasury investigations or court 
proceedings.
    (h) Certain disclosures by attorneys and accountants.
    (i) Corporate fiduciaries.
    (j) Disclosure to taxpayer's fiduciary.
    (k) Disclosure or use of information in preparation or audit of 
State or local tax returns or assisting a taxpayer with foreign country 
tax obligations.
    (l) Payment of tax preparation services.
    (m) Retention of records.
    (n) Lists for solicitation of tax return business.
    (o) Producing statistical information in connection with tax return 
preparation business.
    (p) Disclosure or use of information for quality or peer reviews.
    (q) Disclosure to report the commission of a crime.
    (r) Disclosure of tax return information due to a tax return 
preparer's incapacity or death.
    (s) Effective date.


Sec.  301.7216-3  Disclosure or use permitted only with the taxpayer's 
consent.

    (a) In general.
    (b) Timing requirements and limitations.
    (c) Special rules.
    (d) Permissible disclosures to third parties at the request of the 
taxpayer.
    (e) Effective date.

[[Page 72958]]

    Par. 3. Section 301.7216-1 is revised to read as follows:


Sec.  301.7216-1  Penalty for disclosure or use of tax return 
information.

    (a) In general. Section 7216(a) prescribes a criminal penalty for 
tax return preparers who knowingly or recklessly disclose or use tax 
return information for a purpose other than preparing a tax return. A 
violation of section 7216 is a misdemeanor, with a maximum penalty of 
up to one year imprisonment or a fine of not more than $1,000, or both, 
together with the costs of prosecution. Section 7216(b) establishes 
exceptions to the general rule in section 7216(a) prohibiting 
disclosure and use. Section 7216(b) also authorizes the Secretary to 
promulgate regulations prescribing additional permitted disclosures and 
uses. Section 6713(a) prescribes a related civil penalty for 
disclosures and uses that constitute a violation of section 7216. The 
penalty for violating section 6713 is $250 for each disclosure and use, 
not to exceed a total of $10,000 for a calendar year. Section 6713(b) 
provides that the exceptions in section 7216(b) also apply to section 
6713. Under section 7216(b), the provisions of section 7216(a) will not 
apply to any disclosure or use permitted under regulations prescribed 
by the Secretary.
    (b) Definitions. For purposes of section 7216 and Sec. Sec.  
301.7216-1 through 301.7216-3:
    (1) Tax return. The term tax return means any return (or amended 
return) of income tax imposed by chapter 1 of the Internal Revenue 
Code.
    (2) Tax return preparer--(i) In general. The term tax return 
preparer means:
    (A) Any person who is engaged in the business of preparing or 
assisting in preparing tax returns;
    (B) Any person who is engaged in the business of providing 
auxiliary services in connection with the preparation of tax returns, 
including a person who develops software that is used to prepare or 
file a tax return and any Authorized IRS e-file Provider;
    (C) Any person who is otherwise compensated for preparing, or 
assisting in preparing, a tax return for any other person; or
    (D) Any individual who, as part of their duties of employment with 
any person described in paragraph (b)(2)(i)(A), (B), or (C) of this 
section performs services that assist in the preparation of, or assist 
in providing auxiliary services in connection with the preparation of, 
a tax return.
    (ii) Business of preparing returns. A person is engaged in the 
business of preparing tax returns as described in paragraph 
(b)(2)(i)(A) of this section if, in the course of the person's 
business, the person holds himself out to tax return preparers or 
taxpayers as a person who prepares tax returns or assists in preparing 
tax returns, whether or not tax return preparation is the person's sole 
business activity and whether or not the person charges a fee for tax 
return preparation services.
    (iii) Providing auxiliary services. A person is engaged in the 
business of providing auxiliary services in connection with the 
preparation of tax returns as described in paragraph (b)(2)(i)(B) of 
this section if, in the course of the person's business, the person 
holds himself out to tax return preparers or to taxpayers as a person 
who performs auxiliary services, whether or not providing the auxiliary 
services is the person's sole business activity and whether or not the 
person charges a fee for the auxiliary services. Likewise, a person is 
engaged in the business of providing auxiliary services if, in the 
course of the person's business, the person receives a taxpayer's tax 
return information from another tax return preparer pursuant to the 
provisions of Sec.  301.7216-2(d)(2).
    (iv) Otherwise compensated. A tax return preparer described in 
paragraph (b)(2)(i)(C) of this section includes any person who--
    (A) Is compensated for preparing a tax return for another person, 
but not in the course of a business; or
    (B) Is compensated for helping, on a casual basis, a relative, 
friend, or other acquaintance to prepare their tax return.
    (v) Exclusions. A person is not a tax return preparer merely 
because he leases office space to a tax return preparer, furnishes 
credit to a taxpayer whose tax return is prepared by a tax return 
preparer, furnishes information to a tax return preparer at the 
taxpayer's request, furnishes access (free or otherwise) to a separate 
person's tax return preparation Web site through a hyperlink on his own 
Web site, or otherwise performs some service that only incidentally 
relates to the preparation of tax returns.
    (vi) Application of section 7701(a)(36). If a person is an income 
tax return preparer for purposes of section 7701(a)(36), the person is 
subject to the provisions of section 7216 and is a tax return preparer 
for purposes of Sec. Sec.  301.7216-1 through 301.7216-3. The fact that 
a person is not an income tax return preparer for purposes of section 
7701(a)(36), however, is not determinative of whether the person is a 
tax return preparer for purposes of section 7216(a) and Sec. Sec.  
301.7216-1 through 301.7216-3.
    (vii) Examples. The application of Sec.  301.7216-1(b)(2) may be 
illustrated by the following examples:

    Example 1. Bank B is a tax return preparer within the meaning of 
paragraph (b)(2)(i)(A) of this section, and an Authorized IRS e-file 
Provider. B employs one individual, Q, to solicit the necessary tax 
return information for the preparation of a tax return; another 
individual, R, to prepare the return on the basis of the information 
that is furnished; a secretary, S, who types the information on the 
returns into a computer; and an administrative assistant, T, who 
uses a computer to file electronic versions of the tax returns. 
Under these circumstances, only R is an income tax return preparer 
for purposes of section 7701(a)(36), but all four employees are tax 
return preparers for purposes of section 7216, as provided in 
paragraph (b) of this section.
    Example 2. Tax return preparer P contracts with department store 
D to rent space in D's store. D advertises that taxpayers who use 
P's services may charge the cost of having their tax return prepared 
to their charge account with D. Under these circumstances, D is not 
a tax return preparer because it provides space, credit, and 
services only incidentally related to the preparation of tax 
returns.

    (3) Tax return information--(i) In general. The term tax return 
information means any information, including, but not limited to, a 
taxpayer's name, address, or identifying number, which is furnished in 
any form or manner for, or in connection with, the preparation of a tax 
return of the taxpayer. This information includes information that the 
taxpayer furnishes to a tax return preparer and information furnished 
the tax return preparer by a third party. Tax return information also 
includes information the tax return preparer derives or generates from 
tax return information in connection with the preparation of a 
taxpayer's return.
    (A) Tax return information can be provided directly by the taxpayer 
or by another person. Likewise, tax return information includes 
information received by the tax return preparer from the IRS in 
connection with the processing of such return, including an 
acknowledgment of acceptance or notice of rejection of an 
electronically filed return.
    (B) Tax return information includes statistical compilations of tax 
return information, even in a form that cannot be associated with, or 
otherwise identify, directly or indirectly, a particular taxpayer. See 
Sec.  301.7216-2(o) for limited use of tax return information to make 
statistical compilations without taxpayer consent and to use the 
statistical compilations for limited purposes.

[[Page 72959]]

    (C) Tax return information does not include information identical 
to any tax return information that has been furnished to a tax return 
preparer if the identical information was obtained otherwise than in 
connection with the preparation of a tax return. Information maintained 
in a form that is associated with the tax return preparation, however, 
becomes tax return information, regardless of how the information was 
initially obtained.
    (D) Information is considered ``in connection with tax return 
preparation,'' and therefore tax return information, if the taxpayer 
would not have furnished the information to the tax return preparer but 
for his intention to engage, or his engagement of, the tax return 
preparer to prepare his tax return.
    (ii) Examples. The application of this paragraph (b)(3) may be 
illustrated by the following examples:

    Example 1. Taxpayer A purchases computer software designed to 
assist with the preparation and filing of her income tax return. 
When A loads the software onto her computer, it prompts her to 
register her purchase of the software. As part of the registration 
process, the software provider states that it will provide 
registrants with any updates to the software. In this situation, the 
software provider is a tax return preparer under paragraph 
(b)(2)(i)(B) of this section and the information that A provides to 
register her purchase is tax return information because she is 
providing it in connection with the preparation of a tax return.
    Example 2. Corporation A is a brokerage firm that maintains a 
website through which its clients may access their accounts, trade 
stocks, and generally conduct a variety of financial activities. 
Through its Web site, A offers its clients free access to its own 
tax preparation software. Taxpayer B is a client of A and has 
furnished A his name, address, and other information when 
registering for use of A's Web site to use A's brokerage services. 
In addition, A has a record of B's brokerage account activity, 
including sales of stock, dividends paid, and IRA contributions 
made. B uses A's tax preparation software to prepare his tax return. 
The software populates some fields on B's return on the basis of 
information A already maintains in its databases. A is a tax return 
preparer within the meaning of paragraph (b)(2)(i)(B) of this 
section because it has prepared and provided software for use in 
preparing tax returns. The information in A's databases that the 
software accesses to populate B's return, i.e., the registration 
information and brokerage account activity, is not tax return 
information because A did not receive that information in connection 
with the preparation of a tax return. Once A uses the information to 
populate the return, however, the information associated with the 
return becomes tax return information. If A retains the information 
in a form in which A can identify that the information was used in 
connection with the preparation of a return, the information in that 
form is tax return information. If, however, A retains the 
information in a database in which A cannot identify whether the 
information was used in connection with the preparation of a return, 
then that information is not tax return information.

    (4) Use--(i) In general. Use of tax return information includes any 
circumstance in which a tax return preparer refers to, or relies upon, 
tax return information as the basis to take or permit an action.
    (ii) Example. The application of this paragraph (b)(4) may be 
illustrated by the following example:

    Example. Preparer G is a tax return preparer as defined by 
paragraph (b)(2)(i)(A) of this section. If G determines, upon 
preparing a return, that a refund is due to the taxpayer, G will ask 
whether the taxpayer desires a refund anticipation loan, i.e., a 
loan that the taxpayer repays from the taxpayer's refund proceeds. G 
does not ask about refund anticipation loans in cases in which the 
taxpayer is not due a refund. G is using tax return information when 
it asks whether a taxpayer is interested in obtaining a refund 
anticipation loan because G is basing the inquiry on the taxpayer's 
being entitled to a refund.

    (5) Disclosure. The term disclosure means the act of making tax 
return information known to any person in any manner whatever. To the 
extent that a taxpayer's use of a hyperlink results in the transmission 
of tax return information, such transmission of tax return information 
is a disclosure by the tax return preparer subject to penalty under 
section 7216 if not authorized by regulation.
    (6) Hyperlink. For purposes of section 7216, a hyperlink is the 
device used to transfer an individual using tax preparation software 
from a tax return preparer's Web page to a Web page operated by another 
person without the individual having to separately enter the web 
address of the destination page.
    (7) Request for consent. A request for consent includes any effort 
by a tax return preparer to obtain the taxpayer's consent to use or 
disclose the taxpayer's tax return information. The act of supplying a 
taxpayer with a paper or electronic form that meets the requirements of 
a revenue procedure published pursuant to Sec.  301.7216-3(a) is a 
request for a consent. When a tax return preparer requests a taxpayer's 
consent, any associated efforts of the tax return preparer, including, 
but not limited to, verbal or written explanations of the form, are 
part of the request for consent.
    (c) Gramm-Leach-Bliley Act. Any applicable requirements of the 
Gramm-Leach-Bliley Act, Public Law 106-102 (113 Stat. 1338), do not 
supersede, alter, or affect the requirements of section 7216 and 
Sec. Sec.  301.7216-1 through 301.7216-3. Similarly, the requirements 
of section 7216 and Sec. Sec.  301.7216-1 through 301.7216-3 do not 
nullify any requirements or restrictions of the Gramm-Leach-Bliley Act, 
which are in addition to the requirements or restrictions of section 
7216 and Sec. Sec.  301.7216-1 through 301.7216-3.
    (d) Effective date. This section applies on the date that is 30 
days after the final regulations are published in the Federal Register.
    Par. 4. Section 301.7216-2 is revised to read as follows:


Sec.  301.7216-2  Permissible disclosures or uses without consent of 
the taxpayer.

    (a) Disclosure pursuant to other provisions of Internal Revenue 
Code. The provisions of section 7216(a) and Sec.  301.7216-1 shall not 
apply to any disclosure of tax return information if the disclosure is 
made pursuant to any other provision of the Internal Revenue Code or 
the regulations thereunder. Thus, for example, these provisions will 
not apply to--
    (1) A disclosure under section 7269 to an officer or employee of 
the IRS of information concerning the estate of a decedent; or
    (2) A disclosure under section 7602 (through formal or informal 
procedures) to an officer or employee of the IRS of books, papers, 
records, or other tax return information that may be relevant to any 
person's income tax liability.
    (b) Disclosures to facilitate electronic tax administration. Tax 
return preparers may disclose to the IRS any tax return information the 
IRS requests to assist in the administration of electronic filing 
programs. The information can include tax return information requested 
in the course of investigating Authorized IRS e-file Providers for 
compliance with electronic filing rules or tax return information that 
the IRS determines would assist in evaluating the effectiveness of 
electronic filing programs.
    (c) Disclosures or uses for preparation of a taxpayer's return--(1) 
Tax return preparers located within the same firm in the United States. 
If a taxpayer furnishes tax return information to a tax return preparer 
located within the United States, including any territory or possession 
of the United States, an officer, employee, or member of a tax return 
preparer may use the tax return information, or disclose the tax return 
information to another officer, employee, or member of the same tax 
return preparer, for the purpose of performing services that assist in 
the preparation of, or assist in providing

[[Page 72960]]

auxiliary services in connection with the preparation of, the 
taxpayer's tax return. If an officer, employee, or member to whom the 
tax return information is to be disclosed is located outside of the 
United States or any territory or possession of the United States, the 
taxpayer's consent under Sec.  301.7216-3 prior to any disclosure is 
required.
    (2) Furnishing tax return information to tax return preparers 
located outside the United States. If a taxpayer initially furnishes 
tax return information to a tax return preparer located outside of the 
United States or any territory or possession of the United States, an 
officer, employee, or member of a tax return preparer may use tax 
return information, or disclose any tax return information to another 
officer, employee, or member of the same tax return preparer, for the 
purpose of performing services that assist in the preparation of, or 
assist in providing auxiliary services in connection with the 
preparation of, the tax return of a taxpayer by or for whom the 
information was furnished without the taxpayer's consent under Sec.  
301.7216-3.
    (3) Examples. The following examples illustrate this paragraph (c):

    Example 1. T is a client of Firm, which is a tax return 
preparer. E, an employee at Firm's State A office, receives tax 
return information from T for use in preparing T's income tax 
return. E discloses the tax return information to P, an employee in 
Firm's State B office; P uses the tax return information to process 
T's income tax return. Firm is not required to receive T's consent 
under Sec.  301.7216-3 prior to E's disclosure of T's tax return 
information to P, because the tax return information is disclosed to 
an employee employed by the same tax return preparer located within 
the United States.
    Example 2. Same facts as Example 1 except T's tax return 
information is disclosed to FE who is located in Firm's Country F 
office. FE uses the tax return information to process T's income tax 
return. After processing, FE returns the processed tax return 
information to E in Firm's State A office. Because FE is outside of 
the United States, Firm is required to obtain T's consent under 
Sec.  301.7216-3 prior to E's disclosure of T's tax return 
information to FE.
    Example 3. T, Firm's client, is temporarily located in Country 
F. She initially furnishes her tax return information to employee FE 
in Firm's Country F office for the purpose of having Firm prepare 
her U.S. income tax return. FE makes the substantive determinations 
concerning T's tax liability and forwards T's tax return information 
to FP, an employee in Firm's Country P office, for the purpose of 
processing T's tax return information. FP processes the return 
information and forwards it to Partner at Firm's State A office in 
the United States for review and delivery to T. Because T initially 
furnished the tax return information to a tax return preparer 
outside of the United States, T's prior consent for use or 
disclosure under Sec.  301.7216-3 was not required. An officer, 
employee, or member of Firm in the United States may use T's tax 
return information or disclose the tax return information to another 
officer, employee, or member of Firm without T's prior consent under 
Sec.  301.7216-3 as long as any use or disclosure of T's tax return 
information is within the United States. Firm is required to receive 
T's consent under Sec.  301.7216-3 prior to any subsequent 
disclosure of T's tax return information to a tax return preparer 
located outside of the United States.

    (d) Disclosures to other tax return preparers--(1) Preparer-to-
preparer disclosures. Except as limited in paragraph (d)(2) of this 
section, an officer, employee, or member of a tax return preparer may 
disclose tax return information of a taxpayer to another tax return 
preparer located in the United States (including any territory or 
possession of the United States) for the purpose of preparing, or 
assisting in preparing a tax return, or obtaining or providing 
auxiliary services in connection with the preparation of any tax return 
so long as the services provided are not substantive determinations or 
advice affecting a taxpayer's reported tax liability. The authorized 
disclosures permitted under this subparagraph include one tax return 
preparer disclosing tax return information to another tax return 
preparer for the purpose of having the second tax return preparer 
transfer that information to, and compute the tax liability on, a tax 
return of the taxpayer by means of electronic, mechanical, or other 
form of tax return processing service. The authorized disclosures 
permitted under this subparagraph also include disclosures by a tax 
return preparer to an Authorized IRS e-file Provider for the purpose of 
electronically filing the return with the IRS. Authorized disclosures 
also include disclosures by a tax return preparer to a second tax 
return preparer for the purpose of making information concerning the 
return available to the taxpayer. This would include, for example, 
whether the return has been accepted or rejected by the IRS, or the 
status of the taxpayer's refund. Except as provided in paragraph (c) of 
this section, a tax return preparer may not disclose tax return 
information to another tax return preparer for the purpose of the 
second tax return preparer providing substantive determinations without 
first receiving the taxpayer's consent in accordance with the rules 
under Sec.  301.7216-3.
    (2) Disclosures to contractors. A tax return preparer may disclose 
tax return information to a person under contract with the tax return 
preparer in connection with the programming, maintenance, repair, 
testing, or procurement of equipment or software used for purposes of 
tax return preparation only to the extent necessary for the person to 
provide the contracted services, and only if the tax return preparer 
ensures that all individuals who are to receive disclosures of tax 
return information receive a written notice that informs them of the 
applicability of sections 6713 and 7216 to them and describes the 
requirements and penalties of sections 6713 and 7216. Contractors 
receiving tax return information pursuant to this subsection are tax 
return preparers under section 7216 because they are performing 
auxiliary services in connection with tax return preparation. See Sec.  
301.7216-1(b)(2)(i)(B) and (D).
    (3) Examples. The following examples illustrate this paragraph (d):

    Example 1. E, an employee at Firm's State A office, receives tax 
return information from T for Firm's use in preparing T's income tax 
return. E makes substantive determinations and forwards the tax 
return information to P, an employee at Processor; Processor is 
located in State B. P places the tax return information on the 
income tax return and furnishes the finished product to E. E is not 
required to receive T's prior consent under Sec.  301.7216-3 before 
disclosing T's tax return information to P, because Processor's 
services are not substantive determinations and the tax return 
information remained in the United States at Processor's State B 
office during the entire course of the tax return preparation 
process.
    Example 2. Firm, a tax return preparer, offers income tax return 
preparation services. Firm's contract with its software provider, 
Contractor, requires Firm to periodically randomly select certain 
taxpayers' tax return information solely for the purpose of testing 
the reliability of the software sold to Firm. Under its agreement 
with Contractor, Firm discloses tax return information to 
Contractor's employee, C, who services Firm's contract without 
providing Contractor or C with a written notice that describes the 
requirements of and penalties under sections 7216 and 6713. C uses 
the tax return information solely for quality assurance purposes. 
Firm's disclosure of tax return information to C was an 
impermissible disclosure, because Firm failed to ensure that C 
received a written notice that describes the requirements and 
penalties of sections 7216 and 6713.
    Example 3. E, an employee of Firm in State A in the United 
States, receives tax return information from T for use in preparing 
T's income tax return. After E enters T's tax return information 
into Firms' computer, that information is stored on a computer 
server that is physically located in State A. Firm contracts with 
Contractor, located in Country F, to prepare its clients' tax 
returns. FE, an employee of Contractor, uses a computer in Country F 
and inputs a password to view T's

[[Page 72961]]

income tax information stored on the computer server in State A to 
prepare T's tax return. A computer program permits FE to view T's 
tax return information, but prohibits FE from downloading or 
printing out T's tax return information from the computer server. 
Because Firm is disclosing T's tax return information outside of the 
United States, Firm is required to obtain T's consent under Sec.  
301.7216-3 prior to the disclosure to FE.

    (e) Disclosure or use of information in the case of related 
taxpayers. (1) In preparing a tax return of a second taxpayer, a tax 
return preparer may use, and may disclose to the second taxpayer, in 
the form in which it appears on the return, any tax return information 
that the tax return preparer obtained from a first taxpayer if--
    (i) The second taxpayer is related to the first taxpayer within the 
meaning of paragraph (e)(2) of this section;
    (ii) The first taxpayer's tax interest in the information is not 
adverse to the second taxpayer's tax interest in the information; and
    (iii) The first taxpayer has not expressly prohibited the 
disclosure or use.
    (2) For purposes of paragraph (e)(1)(i) of this section, a taxpayer 
is related to another taxpayer if they have any one of the following 
relationships: husband and wife, child and parent, grandchild and 
grandparent, partner and partnership, trust or estate and beneficiary, 
trust or estate and fiduciary, corporation and shareholder, or members 
of a controlled group of corporations as defined in section 1563.
    (3) See Sec.  301.7216-3 for disclosure or use of tax return 
information of the taxpayer in preparing the tax return of a second 
taxpayer when the requirements of this paragraph are not satisfied.
    (f) Disclosure pursuant to an order of a court, or an 
administrative order, demand, summons or subpoena which is issued in 
the performance of its duties by a Federal or State agency, the United 
States Congress, a professional ethics board, or the Public Company 
Accounting Oversight Board. The provisions of section 7216(a) and Sec.  
301.7216-1 will not apply to any disclosure of tax return information 
if the disclosure is made pursuant to any one of the following 
documents:
    (1) The order of any court of record, Federal, State, or local.
    (2) A subpoena issued by a grand jury, Federal or State.
    (3) A subpoena issued by the United States Congress.
    (4) An administrative order, demand, summons or subpoena that is 
issued in the performance of its duties by--
    (i) Any Federal agency as defined in 5 U.S.C. 551(1) and 5 U.S.C. 
552(f), or
    (ii) A State agency, body, or commission charged under the laws of 
the State or a political subdivision of the State with the licensing, 
registration, or regulation of tax return preparers.
    (5) A written request from a professional ethics board 
investigating the ethical conduct of the tax return preparer.
    (6) A formal demand from the Public Company Accounting Oversight 
Board to registered public accounting firms in connection with an 
inspection under section 104 of the Sarbanes-Oxley Act of 2002 (Act), 
15 U.S.C. 7214, or an investigation under section 105 of the Act.
    (g) Disclosure for use in Treasury investigations or court 
proceedings. A tax return preparer may disclose tax return 
information--
    (1) To his attorney, or to an employee of the Treasury Department, 
for use in connection with any investigation of the tax return preparer 
(including investigations relating to the tax return preparer in its 
capacity as a practitioner) conducted by the IRS or the Treasury 
Department; or
    (2) To his attorney, or to any officer of a court, for use in 
connection with proceedings involving the tax return preparer 
(including proceedings involving the tax return preparer in its 
capacity as a practitioner), or the return preparer's client, before 
the court or before any grand jury that may be convened by the court.
    (h) Certain disclosures by attorneys and accountants. The 
provisions of section 7216(a) and Sec.  301.7216-1 shall not apply to 
any disclosure of tax return information permitted by this paragraph 
(h).
    (1)(i) A tax return preparer who is lawfully engaged in the 
practice of law or accountancy and prepares a tax return for a taxpayer 
may use the taxpayer's tax return information, or disclose the 
information to another officer, employee or member of the tax return 
preparer's law or accounting firm, consistent with applicable legal and 
ethical responsibilities, who may use the tax return information for 
the purpose of providing other legal or accounting services to the 
taxpayer. As an example, a lawyer who prepares a tax return for a 
taxpayer may use the tax return information of the taxpayer for, or in 
connection with, rendering legal services, including estate planning or 
administration, or preparation of trial briefs or trust instruments, 
for the taxpayer or the estate of the taxpayer. In addition, the lawyer 
who prepared the tax return may disclose the tax return information to 
another officer, employee or member of the same firm for the purpose of 
providing other legal services to the taxpayer. As another example, an 
accountant who prepares a tax return for a taxpayer may use the tax 
return information, or disclose it to another officer, employee or 
member of the firm, for use in connection with the preparation of books 
and records, working papers, or accounting statements or reports for 
the taxpayer. In the normal course of rendering the legal or accounting 
services to the taxpayer, the attorney or accountant may make the tax 
return information available to third parties, including stockholders, 
management, suppliers, or lenders, consistent with the applicable legal 
and ethical responsibilities, unless the taxpayer directs otherwise. 
For rules regarding disclosing outside of the United States, see Sec.  
301.7216-2(c) and (d).
    (ii) A tax return preparer's law or accounting firm does not 
include any related or affiliated firms. For example, if law firm A is 
affiliated with law firm B, officers, employees and members of law firm 
A must receive a taxpayer's consent under Sec.  301.7216-3 before 
disclosing the taxpayer's tax return information to an officer, 
employee or member of law firm B.
    (2) A tax return preparer who is lawfully engaged in the practice 
of law or accountancy and prepares a tax return for a taxpayer may, 
consistent with the applicable legal and ethical responsibilities, take 
the tax return information into account, and may act upon it, in the 
course of performing legal or accounting services for a client other 
than the taxpayer, or disclose the information to another officer, 
employee or member of the tax return preparer's law or accounting firm 
to enable that other officer, employee or member to take the 
information into account, and act upon it, in the course of performing 
legal or accounting services for a client other than the taxpayer. This 
is permissible when the information is, or may be, relevant to the 
subject matter of the legal or accounting services for the other 
client, and consideration of the information by those performing the 
services is necessary for the proper performance of the services. In no 
event, however, may the tax return information be disclosed to a person 
who is not an officer, employee or member of the law or accounting 
firm, unless the disclosure is exempt from the application of section 
7216(a) and Sec.  301.7216-1 by reason of another provision of 
Sec. Sec.  301.7216-2 or 301.7216-3.
    (3) The application of this paragraph may be illustrated by the 
following examples:


[[Page 72962]]


    Example 1. A, a member of an accounting firm, renders an opinion 
on a financial statement of M Corporation that is part of a 
registration statement filed with the Securities and Exchange 
Commission. After the registration statement is filed, but before 
its effective date, B, a member of the same accounting firm, 
prepares an income tax return for N Corporation. In the course of 
preparing N's income tax return, B discovers that N does business 
with M and concludes that the information given by N should be 
considered by A to determine whether the financial statement opined 
on by A contains an untrue statement of material fact or omits a 
material fact required to keep the statement from being misleading. 
B discloses to A the tax return information of N for this purpose. A 
determines that there is an omission of material fact and that an 
amended statement should be filed. A so advises M and the Securities 
and Exchange Commission. A explains that the omission was revealed 
as a result of confidential information that came to A's attention 
after the statement was filed, but A does not disclose the identity 
of the taxpayer or the tax return information itself. Section 
7216(a) and Sec.  301.7216-1 do not apply to B's disclosure of N's 
tax return information to A and A's use of the information in 
advising M and the Securities and Exchange Commission of the 
necessity for filing an amended statement. Section 7216(a) and Sec.  
301.7216-1 would apply to a disclosure of N's tax return information 
to M or to the Securities and Exchange Commission unless the 
disclosure is exempt from the application of section 7216(a) and 
Sec.  301.7216-1 by reason of another provision of either this 
section or Sec.  301.7216-3.

    Example 2. A, a member of an accounting firm, is conducting an 
audit of M Corporation, and B, a member of the same accounting firm, 
prepares an income tax return for D, an officer of M. In the course 
of preparing the return, B obtains information from D indicating 
that D, pursuant to an arrangement with a supplier doing business 
with M, has been receiving from the supplier a percentage of the 
amounts that the supplier invoices to M. B discloses this 
information to A who, acting upon it, searches in the course of the 
audit for indications of a kickback scheme. As a result, A discovers 
information from audit sources that independently indicate the 
existence of a kickback scheme. Without revealing the tax return 
information A has received from B, A brings to the attention of 
officers of M the audit information indicating the existence of the 
kickback scheme. Section 7216(a) and Sec.  301.7216-1 do not apply 
to B's disclosure of D's tax return information to A, A's use of D's 
information in the course of the audit, and A's disclosure to M of 
the audit information indicating the existence of the kickback 
scheme. Section 7216(a) and Sec.  301.7216-1 would apply to a 
disclosure to M, or to any other person not an employee or member of 
the accounting firm, of D's tax return information furnished to B.

    (i) Corporate fiduciaries. A trust company, trust department of a 
bank, or other corporate fiduciary that prepares a tax return for a 
taxpayer for whom it renders fiduciary, investment, or other custodial 
or management services may, unless the taxpayer directs otherwise--
    (1) Disclose or use the taxpayer's tax return information in the 
ordinary course of rendering such services to or for the taxpayer; or
    (2) Make the information available to the taxpayer's attorney, 
accountant, or investment advisor.
    (j) Disclosure to taxpayer's fiduciary. If, after furnishing tax 
return information to a tax return preparer, the taxpayer dies or 
becomes incompetent, insolvent, or bankrupt, or the taxpayer's assets 
are placed in conservatorship or receivership, the tax return preparer 
may disclose the information to the duly appointed fiduciary of the 
taxpayer or his estate, or to the duly authorized agent of the 
fiduciary.
    (k) Disclosure or use of information in preparation or audit of 
State or local tax returns or assisting a taxpayer with foreign country 
tax obligations. The provisions of paragraphs (c) and (d) of this 
section shall apply to the disclosure by any tax return preparer of any 
tax return information in the preparation of, or in connection with the 
preparation of, any tax return of the taxpayer under the law of any 
State or political subdivision thereof, of the District of Columbia, of 
any territory or possession of the United States, or of a country other 
than the United States. The provisions of section 7216(a) and Sec.  
301.7216-1 shall not apply to the use by any tax return preparer of any 
tax return information in the preparation of, or in connection with the 
preparation of, any tax return of the taxpayer under the law of any 
State or political subdivision thereof, of the District of Columbia, of 
any territory or possession of the United States, or of a country other 
than the United States. The provisions of section 7216(a) and Sec.  
301.7216-1 shall not apply to the disclosure or use by any tax return 
p