About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

32 NewsQuarterly 1 (2012-2013)

handle is hein.journals/newsqtrly32 and id is 1 raw text is: Thinking About Tax Malpractice by Michael B. Lang* W hen tax practitioners think of who addresses substandard behavior by their colleagues they think of the IRS Office of Professional Responsibility (OPR) and they are right to do so. OPR's mandate, funding and staffing have expanded greatly in recent years as part of an effort to hold those who work in the tax field to higher standards. But OPR, like state bar ethics committees, focuses on professional disci- pline. It is of no help to the client whose tax lawyer has mishandled the client's representation. This remains the province of malpractice and related causes of action. This article will briefly review some basic tax malpractice- related issues, as well as how tax lawyers may reduce their malpractice risk. Basic Issues An unhappy client may seek redress from his tax lawyer through any one of numerous causes of action. Some arise under tort or contract law, such as negligence, breach of contract, breach of fiduciary duty, intentional misrepresentation (known as deceit), negligent misrepresentation, civil conspiracy, breach of covenant of good faith, intentional or negligent infliction of emotional distress, or aiding and abetting a breach of fiduciary duty. Others may arise under statutes, such as unfair trade practice provisions, RICO, or securities laws. Plaintiffs' claims often include multiple causes of action because of differences as to the application of the statute of limitations, measure of damages, ability to recover legal fees, to whom liability extends and defenses. Despite such differences, such causes of action generally require proof that (1) the defendant owed a duty to the plaintiff, be it under tort law, a contract, or a statute; (2) the defendant breached the duty; (3) the breach was the cause (referred to as proximate cause in tort cases) of an injury to the plaintiff; and (4) the injury resulted in actual damages to the plaintiff. Certain causes of action may require additional elements of proof-for example, deceit requires a showing of scienter-but the basic four elements are the core of the various causes of action. A traditional negligence action involves a breach of the duty of care or a failure to exercise care, the duty of care requiring the exercise of competence and diligence normally exercised by lawyers in similar circumstances. Restatement (Third) of the Law Governing Lawyers § 52(1) (2000) (Restatement); see M.R.P.C. 1.1 and 1.3. * Professor of Law, Chapman University School of Law, Orange, CA. continued on page 27 Aftermath of NFIB v. Sebelus (1) Health Insurance Tax 8 (Penalty) Upheld (2) It's Not a Tax (Statutorily), 13 but It Is a Tax (Constitutionally) (3) The Supreme Court Has Spoken: 15 Now What Should Employers Do About Their Group Health Plans? Opinion Point Diagnosis of and Proposed Remedies for Structural Problems in the Federal Tax System 16 Points to Remember (1) The Postman (Usually) Rings 20 Twice: Resolving State Tax Liabilities After a Federal Tax Adjustment (2) Validity of Guidance Questioned 21 by the Courts (3) Entergy v. Commissioner: 23 The Untenable Circuit Split Book Review 26 The ABA Property Tax Deskbook Boxscore 32 CLE Calendar 33 .I ATION m ASetion American Bar Association CONTENTS Thinking About Tax Malpractice From the Chair Rudolph R. Ramelli Interview with Mark Prater 1 3 4

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most