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Practicing law without a license - by Dan Meador

1 April 2003

From Dan Meador

One of the difficulties for those of us who aren't attorneys CPA's or enrolled agents has been providing "assistance of counsel" to people who have tax difficulties. We've seemingly resolved that difficulty.

2. Lynda (Paralegals) developed much of what is reflected in the lower two-thirds of the IRS Form 2843 attachment so I'm not going to try to take exclusive credit. For some time attorneys at the Oklahoma Tax Commission acknowledged me as client representative based simply on the Power of Attorney/Letter of Attorney & Notice of Intent to Represent, but I hadn't used them with IRS. After seeing Lynda's work, I added case law and other relevant cites and facts then photocopied the insert on the back portion of the IRS Form 2843. The front portion should be filled out as it normally would be, but it shouldn't be signed.

Lynda said that after she began using something akin to this approach, IRS sent her an enrolled agent number. However, with or without the enrolled agent number, the Power of Attorney & Letter of Attorney is more inclusive; it postures the representative as Attorney in Fact, and it applies to IRS, the state tax agency & third parties.

An interesting story goes along with the POA/LOA.

In 1995, I engaged a former chief justice of the Oklahoma Supreme Court in a written dialogue concerning non-attorney counsel. Oklahoma law clearly recognizes attorney & non-attorney counsel. The former chief justice conceded the issue, but I made a strategic error. After all the memoranda business, I asked one simple question: "Where do I register as non-attorney counsel?"

Justice Wilson answered my question: "There is no registry for non-attorney counsel in Oklahoma."

Lower court judges continued to refuse to let me represent people. Consequently, as we've gotten closer to the time when it will be necessary for those of us who aren't attorneys to represent people, I developed a plan to cure the matter once and for all. However, Gail's youngest son recently received a summons on a child support issue. Gail stopped to talk with the assistant D.A. who represents the Department of Human Services in Kay County. The gal told her, "I can't talk to you about the case unless you have his power of attorney."

She gave Gail a standard "Special Power of Attorney" form that conveys "Attorney in Fact" standing & enables us to represent David before "any government body" in Oklahoma.

Is there a special law for counsel in DHS-related affairs? No, but the state finds it convenient to avoid having to pay for public defenders so DHS provides a standard form Special Power of Attorney that takes advantage of the law as it is. The only prohibitive law the Oklahoma legislature has enacted prevents court clerks, the county sheriff and other "officers of the court" from practicing in the county where they are normally employed. Consequently, I attached my tax-related POA & the DHS Special Power of Attorney to a letter written to the district judge who has administrative responsibility over our judicial district. I want him to tell me the law governing "the right to assistance of counsel and standing to provide assistance of counsel." I sent the request last week.

I revised the attached POA/LOA with language from the DHS Special Power of Attorney so it should be more effective than it has already proven to be.

Again, PROCEDURE ATTACHED TO THIS POST IS FOR YOUR PRIVATE USE. Do not pass it around.

Dan

Form 2843 (Rev. J2-97) Page 2

7 Notices and communications. Original notices and other written communications will be sent to you and a copy to the

first representative listed on line 2 unless you check one or more of the boxes below.

a If you want the first representative listed on line 2 to receive the original, and yourself a copy, of such notices or

communications, check this box.......................................................................................................................................................>. X

b If you also want the second representative listed to receive a copy of such notices and communications, check this

box.........................................................................................................................................................................................................>

c If you do not want any notices or communications sent to your representative(s|, checkjhis box ...............................

8 Retention/revocation of prior power(s) of attorney. The filing of this power of attorney automatically revokes all earlier

powers of attorney on file with the Internal Revenue Service for the same tax matters and years or periods covered by

this document. If you do not want to revoke a prior power of attorney, check here ................................................................>

YOU MUST ATTACH A COPY OF ANY POWER OF ATTORNEY YOU WANT TO REMAIN IN EFFECT.

The attached Power of Attorney/Letter of Attorney, notarized in compliance with

requirements of state law, is the operative legal authorization; this Internal Revenue Service

Form 2848 is being completed in part merely for convenience of IRS personnel required to

record certain information.

Per 31 CFR 10.7(c)(l)(vii), "An individual may represent any individual or entity

before personnel of the Internal Revenue Service who are outside of the United States."

States of the Union are outside the "geographical" United States, and the Secretary of the

Treasury has never established internal revenue districts in States of the Union in

compliance with requirements of 26 U.S.C. 7621 and E.O. #10289; the Internal Revenue

Service is deemed to colorably be operating in States of the Union in ancillary and support

capacities on behalf of the Director of the Office of Management Budget (P.L. 104-316; 31

U.S.C. 3701, et seq.) and the Fiscal Assistant Secretary, Department of the Treasury (31 CFR

215.2(1)).

Per 5 U.S.C. 500(d)(l), the Internal Revenue Service cannot grant or deny to an

individual who is not qualified as provided by subsections (b) & (c) (attorneys and certified

public accounts) the right to appear for or represent a person before an agency or in an

agency proceeding; per 26 CFR 301.6103(c), Attorney in Fact is duly appointed designee

of Principal and does not apply in connection with practice before the IRS; and per 26 CFR

601.501(b), particularly 601.503(b)(3)(ii), with notarized POA attached Form 2848 is

not the operative power of attorney... "... [H]is right to be heard through his own counsel

is unqualified..." Chandler v. Fretag, 348 U.S. 3, and "For a government official to mouth

in a ritualistic way part of the warning about the right to counsel, while excluding the

person relied upon as counsel is, in effect, to reverse the meaning of the words used." U.S.

v. Tarlowski, 305 F.Supp. 112 (1969).

The attached Power of Attorney/Letter of Attorney, and the attending notice of

intent to represent, apply to federal agencies and authorities in addition to the Internal

Revenue Service, state agencies and authorities, and third parties that may be directly or

indirectly involved with controversy arising under internal revenue laws of the United

States and qualified resident and nonresident state income taxes imposed by state law.

Notice of Intent to Represent

March 25, 2003

PURPOSE: Notice of intent to represent as next friend counsel, power of attorney & attorney in fact

PRINCIPAL: John Doe, SSN 555-55-5555

ACCOMPANYING DOCUMENT: Doe Letter of Attorney & Power of Attorney executed to (Your name here of (Your city and state) IRS Form 2848

To whom it may concern:

Please be advised that I will represent John Doe as next friend counsel, power of attorney and attorney in fact, as authorized by her Letter of Attorney & Power of Attorney that accompanies this notice.

Regards,

(Your name here)

Letter of Attorney & Power of Attorney

PRINCIPAL: John Doe, SSN 555-55-5555

PURPOSE: Convey authority for representation concerning state and federal taxes to Dan Meador of Marland, Oklahoma.

I hereby authorize Dan Meador of Marland, Oklahoma to represent me in all matters concerning state and federal income and employment taxes for calendar years 1996 through 2003, whether in administrative or judicial forums. Mr. Meador will serve in the capacity of next friend counsel, power of attorney and attorney in fact.

Due to complexity of state and federal tax law and procedure, I am incapable of effectively representing myself in administrative and judicial forums. Therefore, I am entitled to next friend counsel and hereby convey such authority to Mr. Meador as is necessary to carry out duties as power of attorney and attorney in fact in administrative and judicial forums.

Mr. Meador's authority includes authorization to secure documents, records and other matter pertaining to me, execute written correspondence on my behalf, speak on my behalf, examine witnesses on my behalf, and perform other duties common and proper as next friend counsel, power of attorney and attorney in fact.

My authorized representative shall not be liable for any loss that results from a judgment error that was made in good faith. My authorized representative shall be liable for willful misconduct or the failure to act in good faith while acting as my attorney-in-fact. I authorize my authorized representative to indemnify and hold harmless any third party who accepts and acts under this document.

I reserve the right to approve or reject compromises, agreements and other process that materially affects me.

This Letter of Attorney & Power of Attorney shall be effective immediately and until such time as it is revoked by written notice.

_______________________________ _________________________

John Doe Date

44 Honeymoon Lane

Valentine, Oklahoma 74604

(580) 555-5555

Notary Public

Before me, the undersigned authority, on this _________ day of ___________, 2003, personally appeared __________________________________ (principal), whose name is subscribed to the foregoing instrument, and said person being duly sworn, the principal declared to me in my presence that the instrument is the principal's Letter of Attorney and Power of Attorney, and that execution of the instrument is the principal's free act and deed for conveyance of authority therein specified.

My commission expires __________________________________________.

_______________________________ _________________________

Notary Public Date

SEAL: