IRS cannot charge fees for PTINs

By Sally P. Schreiber, J.D.

A federal district court held that the IRS has the authority to require tax return preparers to obtain preparer tax identification numbers (PTINs) but that it cannot charge a user fee for issuing them (Steele, No. 14-cv-1523-RCL (D.D.C. 6/1/17)). The plaintiffs in the case, tax return preparers, brought a class-action suit against the IRS claiming that the Service lacks legal authority to require preparers to obtain PTINs and to charge a fee for issuing them.

The IRS originally began charging a user fee for issuing a PTIN in connection with its tax return preparer registration program, which required tax return preparers who were not CPAs, attorneys, or enrolled agents to pass an exam and register with the IRS. That program was invalidated in Loving, 742 F.3d 1013 (D.C. Cir. 2014).

Regarding the IRS's authority to require the use of PTINs, the district court applied the standard of review of agency action found in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). The court found that the IRS has the authority to require PTINs under Chevron because Sec. 6109(d) specifically and unambiguously gives the IRS the power to require the use of a PTIN. Further, as required by State Farm, the IRS's decision to use PTINs was not arbitrary or capricious, the court held, because "[t]he IRS has articulated satisfactory explanations for its actions" (slip op. at 13).

The plaintiffs argued that the IRS could not charge PTIN fees because a PTIN is not a "service or thing of value," which is required for agencies to validly impose fees (31 U.S.C. §9701). According to the Supreme Court, under the "service or thing of value" requirement, agencies may impose fees for bestowing on individuals special benefits not shared by the general public.

According to the district court, because the court in Loving found that Congress did not authorize a license requirement for tax return preparers, there are no longer any restrictions on who may obtain a PTIN. As a result, there is no "special benefit" of being able to prepare tax returns for compensation (slip op. at 15). Therefore, PTINs are not a "service or thing of value," and the IRS cannot charge a fee for issuing them. In a separate order accompanying the opinion, the court directed the IRS to "provide each class member with a full refund of all PTIN fees paid."

As a result of the decision, the IRS has stopped charging user fees on its PTIN registration system. It says it is working with the Justice Department to decide how to proceed with refunds of previously paid fees.

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