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Category: Tax
Satisfied Customers: 12023
Experience:  Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
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This concerns due diligence and IRS penalties. The same

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This concerns due diligence and IRS penalties.

The same client who has a 2012 K1 partnership loss with a $71k additional invested capital in 2012 can take this loss based on the 2012 information. However, she informed me that she had taken excess losses in prior years over and above her initial investment (basis).
Now that I know this and confirmed it on a few years returns that she had prepared, I informed her that the returns should be amended. She does not want to hire me to do these amendments. I do not think that she will do these amended returns..

For due diligence, what is my next action?

Will a letter prepared by me " indicating the Form 1040 amendments are necessary and she chose not to hire me" be sufficient for "due diligence". Am I still considered doing my due diligence if I file her 2012 tax return even though she had given me this information about prior years?

Lane :

OK this is where it gets to be art more than Science, I think

Lane :

If it were me I would, as you said, consider "... a letter prepared by me " indicating the Form 1040 amendments are necessary and she chose not to hire me..." sufficient for due diligence and disclosure

Lane :

HOWEVER, if it were me, I would draw the line at doing the 2012 return (having knowledge of the previos years' information).

Lane :

Probably stating the obvious, but as long as the 2012 return can be done in a compliant fashion, you're TECHNICALLY OK, but for example I remember my Fed Tax professor making the statement (and I think you'll see this in the AICPA obligations as well) tax compliance is a part of the job ...

Lane :

To take a bit of a philosophical bent, this could be a defining moment for you. The CRAP that the big eight firms sold for years (not unrelated to why it's now the big four) would be right in line with going ahead and doing this year's return (technically OK) but I'll be that at some time in the past each one of those firm's partners crossed over that line and things started going the way they did .. or a long time ... until Enron, Global Crossing and other blew it all up

Lane :

Sorry I can't help you more, but I think this one's a judgment call ... I CAN tell you that since that time the ABA model rules of conduct have been changed to REQUIRE disclosure in those kinds of situations (especially as it relates to walking away from the client only to let another firm walk right into a bad situation) ... I know you're not an attorney, bet the recent tide as been to err on the side of proactive disclosure, as opposed to waiting on a request

Lane :

Finally, this probably need to be done in terms of whatever professional or membership standards you have to meet ... enrolled preparer, circular 230, etc. Let me know if you'd like some research specific to certain code or rules

Lane :

Hope this helps you flush it out

Lane :



Never saw you come in on this one.

Let me know if you'd like some analysis particular to as specific set of rules.

The term Due Diligence is used in a lot of areas (investments, tax prep, accounting generally FASB etc)

Let me know if you're referring to something specific

Lane and other Tax Specialists are ready to help you
Customer: replied 3 years ago.

Would you mind sending the code it references. I will call the client to discuss this.

Hi Peg,

Back at the desk now. (Enrollment Meetings from 10:00 until 2:00 today).

Can you give me a little more detail as to what you're asking?

Above, I mentioned that the term due-diligence (the term you used in your original question) is used in a LOT of different professions.

It almost always means the diligence that is due the client, (as required by a regulatory board - state regulatory Bar, state board of accountancy, FINRA, state securities dept ... OR ... as modeled by a trade association, such as ABA, or AICPA, or CFP Board).

What I mentioned was that, if you could give me the rules/area in which you wish to be/show compliance, I can dig in a get them for you.

For FINANCIAL STATEMENTS generally, and this is in in line with AICPA's model - there are really three levels of responsibility:

Audit, Review and Compilation.

AICPA articulates it this way; by making three statements and then saying which level (Audit Review and Compilation coincide)

"The accountant is required to obtain an
understanding of the entity’s internal
control and assess fraud risk"

This first one applies ONLY to AUDIT.

The accountant is required to perform
verification and substantiation procedures.

This on applies only to AUDIT.

"The accountant is required to perform
inquiry and analytical procedures"

This one applies to BOTH AUDIT AND REVIEW

Note that compilation is not associated with ANY of these three.

In fact, they define compilation in this way:

"Accountant does not obtain or provide
any assurance that there are no material
modifications that should be made to
the financial statements."

Further, they say that the OBJECTIVE of a compilation is the following:

To assist management in presenting
financial information in the form
of financial statements without
undertaking to provide any assurance
that there are no material modifications
that should be made to the financial

And regarding any assurances that should be made in a cover letter for a compilation?

"None – the report states that no
assurance is provided"

I think that your best risk management (for yourself) will be to use the compilation terminology, state in your cover letter, that you are preparing based on information compiled from existing data, and provided by your client.

And most important, that you are making no assurances of the accuracy of the data.

Then get them to acknowledge this by signature.

In terms of recent trends, the heightened IRS expectations (that started with IRS making the statement that accounting firms had to pro-actively ASK every client if they had signature authority over a foreign bank account (even if they had checked the box "no"), was in 2008.

After that, the National Taxpayer Advocate’s 2009 Annual Report to Congress discussed the possibility of imposing additional due diligence requirements on preparers.

Next came an IRS “information” project in January, 2010 that involved sending letters to 10,000 tax preparers.

Then came the registrations initiative (for preparers).

What has essentially come, through all of this, to be understood as due diligence for TAX PREPARERS is the following:(This is a direct quote from a 2010 piece distributed by the California Society of CPAs)

What is Due Diligence?

Generally, due diligence may be framed as a question: Did the practitioner (and the firm) exercise professional care to ensure that—based on the knowledge of the practitioner (and the firm)—the taxpayer’s return is true, correct and complete?

Dictionary definitions generally view due diligence as the diligence, or care, that a reasonable person (in our context, a tax professional/preparer) would undertake in similar circumstances.

When an examination of taxpayer’s return results in an understatement of tax, the IRS often asks:

Did the preparer apply the law appropriately to the facts?

What effort was made to obtain the pertinent facts?

Should the preparer have made inquiries about items on the return or verified the evidence in support of the item?

What documentation existed to support the professional duties of the preparer?

What processes existed in the tax preparer’s office or the preparer’s firm to ensure the appropriate evaluation of facts, application of law, discharge of any indicated responsibility to verify information and to document these processes?

There are basically two aspects of due diligence that may impact a CPA preparing a tax return:

(1) Diligence pertaining to representations with regard to interpretations and compliance with tax law (including interpretive regulations and other tax authority guidance). These are tax positions for which the preparer must have knowledge of (or a reason to know of) to be responsible.

(2) Diligence pertaining to facts or evidence to support items reflected on a return. Generally, this is the taxpayer’s representations about “facts” and the taxpayer’s representations about amounts reflected in the return. However, the CPA cannot ignore the implications of the taxpayer’s information or other information of which the CPA has knowledge.

[Peg. Note this next one- a part of the second area of due-diligence]

For example, the client asserts that adequate records to support entertainment deductions exist, but the CPA knows that adjustments for inadequate records arose in an examination of a prior year return. In that situation the CPA should likely review the supporting documents to ensure that they do exist.

Steps CPAs Should Take

Educate and inform clients in writing: While taxpayer representation (including in an organizer) may suffice for most information placed on a tax return, the IRS could assert (and, in fact, a taxpayer client may claim) that the preparer did not adequately explain the essential requirements for claiming of certain types of tax benefit on a return (including omissions).

Tax practitioners are advised to consider sending informative explanations with respect to the requirements for record-keeping, as well as the basis in tax law for certain types of tax benefits for which they will make representations to the tax practitioner.

This would include an explanation of the necessity for answering any required questions on tax returns. This may be done either by a separate mailing to the client during the tax year (which makes it a good promotional opportunity), or inclusion with the tax return engagement letter.

An example of sensitive Form 1040 areas where this may be useful might include: real estate loss and real estate professional requirements for claiming losses, the requirements for employees and partners necessary to claim unreimbursed business expenses, hobby loss rules and the at-risk limitations for claiming deductions or losses. The foregoing items are not all-inclusive.

An Excellent piece...In this particular society's view, you have an issue as it relates to the previous returns.

Lane and other Tax Specialists are ready to help you
Lane and other Tax Specialists are ready to help you
Thanks Peg!