Archive for May, 2015|Monthly archive page

Back to Basics – Part XV – Form 2848 Power of Attorney

Originally published in the Cedar Street Times

May 29, 2015

Question: My mother is older and it is sometimes difficult for her to sign her tax returns.  I have a general power of attorney over her affairs that her estate planning attorney put together for us, so am I authorized to sign her tax returns?  Also, we need to file a tax return for my son, who is away at college.  Can I sign for him now that he is over 18?  Can I call the IRS and talk to them about my mother’s taxes or my son’s taxes if needed?

Answer: In all of these cases, the IRS would first want you to file a Form 2848 – Power of Attorney.  This is a limited power of attorney that just governs tax issues. (California also has an equivalent Form 3520, although they will generally accept a copy of the IRS Form 2848 as well.)

The Form 2848 is the standard document the IRS uses to process any individual that is acting as a representative for another person.  As a CPA, I use this document as well when a client needs me to get access to their past tax information, balances owed, current status of notices, etc.  It is also used if they need me to represent them during a tax audit.  As with a general power of attorney, it is only good as long as the person is living.  Once someone dies, a Form 56 – Notice Concerning Fiduciary Relationship is filed instead.  An authorized executor or trustee, for instance, would file a Form 56, as a fiduciary, and they literally step into the shoes of the deceased individual with all the rights and authority that person had.  After filing the Form 56, the fiduciary could then file a 2848 to authorize someone else, such as a CPA to represent them.

It is important to note that you cannot give just anyone full representation rights by filing a Power of Attorney.  CPAs, attorneys, EAs, and immediate family members, are the only ones you can appoint for individual representation and provide them with full authority and practice rights before the IRS.  (There are certain other classes that have limited practice rights, however.)

The Form 2848 also allows you to designate what authorities and for what tax periods you want to designate to your representative (such as “Income taxes and Gift taxes, Forms 1040 and 709, 2011-2015”).  You can also indicate if you want your representative to receive copies of all IRS communication with you, if you want them to be able to add additional representatives without your consent, sign your returns, etc.  If you want them to be able to sign your returns, there is additional language required as specified in the instructions to the 2848.

Generally, anytime you file a new Form 2848 it will replace any prior power of attorneys on file with the IRS unless you indicate otherwise and provide copies of the prior power of attorneys you wish to remain in effect.  Both, the taxpayer and the representative must sign the power of attorney.  Also note that this IRS Form 2848 – Power of Attorney does not replace or affect a general power of attorney in any way for other purposes.  It is only used with the taxing authorities.

If the taxpayer is competent, but unable to sign the Form 2848, the IRS will allow an “X” to be made with the signature of two witnesses as well, and an explanation.  In the case of someone who is incompetent, hopefully they had a general power of attorney.  In these cases, as with the situation of the mother in the question at the beginning of the article, the power of attorney can be filled out with the exception of the taxpayer signing, and then the general power of attorney can be attached to the Form 2848.  In the case of incompetent individuals without a general power of attorney in place it can become a sticky situation.  A conservatorship is the proper legal vehicle to give one adult authority over another adult’s affairs when that person is incompetent and no other planning is in place, but this can be quite costly and impractical at times.  I’ll let you wrestle with the IRS on that one!

If you would like to catch up on our Back to Basics series on personal tax returns, prior articles are republished on my website at www.tlongcpa.com/blog .

Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.

As an addendum to the print version of this article, I am adding this additional information regarding authorizing someone else to sign your tax returns for you.  Generally, you can only authorize someone to sign your returns if: 1) disease or injury prevents you from signing, 2) you are out of the country for at least 60 days prior to the tax return due date, or 3) you request and the IRS grants you permission.  In the question of the college student who needs a parent to sign his returns or the mother who has difficulty signing, both would have to meet one of these three requirements as well.

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