The OPR guidance on the ERC (such as it is) was issued this afternoon in Alerts from Office of Professional Responsibility (OPR) Issue 2023-02 (an email newsletter) #TaxTwitter 1/x
It looks at applying Circular 230 to the claims. For those preparing claims it points out the requirements found in Section 10.22(a) for due diligence as to accuracy of a claim and also the limits of relying on what the taxpayer tells you if you know, or should know, 2/x
that such reliance is misplaced. It does not that if "he practitioner cannot reasonably conclude (consistent with the standards discussed in this guidance) that the client is or was eligible to claim the ERC, 3/x
then the practitioner should not prepare an original or amended return that claims or perpetuates a potentially improper credit." Also, if you become aware a client has claimed an improper credit, you must notify them of the noncompliance per 10.21 and any penalties that may 4/x
apply. If you don't handle the payroll tax issues, but become aware while preparing another return, "as a best practice" you should advise the taxpayer of the option of filing an amended return. But you aren't required to prepare the amended return 5/x
unless the taxpayer requests it and you feel competent to do it. It concludes by reminding practitioners of the risks under 10.37(a)(3) of unreasonably relying on the written advice of another party (the promoter) 6/x
with regard to ERC matters, considering the conflict of interest that may exist due to the fee structure under which they are compensated. So don't expect to get "off the hook" by saying you relied on the written materials of the promoter. 7/7
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