Transcript of the above video:

As the title of this video suggests, we are discussing asking “what is an "enrolled agent" of the Internal Revenue Service?" So I thought of making this video, some folks have been talking to me about taxes, tax law, and I thought of making this video because I think people are not fully aware as to what an "Enrolled Agent" is. I think that they have some misconceptions about what it is and I also want to explain what the difference is between a Tax Attorney and one of these "Enrolled Agents" and even a CPA, a Certified Public Accountant. 

So if you go over here to irs.gov, now bear in mind this is the IRS's own website, irs.gov, so this is the Government of the United States specifically the United States' Internal Revenue Service under the title: Enrolled Agent information. Now let's first of all talk about this title, Enrolled Agent. These folks are by definition an agent of the IRS. Now as we will get into when we are reading through this, they are not an employee necessarily but they are an agent, so remember that. This is an agent of the IRS, unlike for example a private Attorney like myself, who basically is just a professional that you hire for your own assistance; this is someone who is an agent of the IRS. So let's get into this. Quote: "An Enrolled Agent is a person who has earned the privilege of representing taxpayers before the Internal Revenue Service by either passing a three-part comprehensive IRS test covering individual and business tax returns or through experience as a former IRS employee." Well first off, if that doesn't tell you what you need to know about this, I don't know what does. A lot of these folks are going to be former IRS employees, now they're an agent of an enrolled agent of the IRS or they are somebody who has taken this three-part comprehensive test. I want to be clear on this, it pertains to individual and business tax returns, the forms associated with processing certain tax matters, not necessarily the underlying law. The reason I point that out is not to be like condescending or anything, but they approach this from a very different perspective and Tax Attorneys in my opinion are in a sense kind of paid to be creative whereas Enrolled Agents and oftentimes CPA, Certified Public Accountants, they are kind of, I don't know how to put it exactly, it's kind of like almost having like a private bureaucrat if you will, somebody who's informed and has some expertise with regard to how it processes through the bureaucracy and the forms to use, again not necessarily the underlying law.

So quoting further: "Enrolled Agent status is the highest credential the IRS awards," Well what does that mean? A lot of this, again I'm not going to say that there's anything dishonest or disingenuous going on here but this is kind of a classic example of when the Government speaks, it sort of just lays out terminology and then allows primarily the lay people who take it in, to just sort of take it how they will, and a lot of people make certain assumptions and presumptions about what this language means thinking they know what it means when in reality it's a different thing. Again, just the term enrolled agent in and of itself immediately sets off alarm bells in my head because, again with my Attorney hat on, I am like "Whoa, that's an agent of the government," and I think a lot of lay people when they hear that they don't really think of "oh that's an agent, no, they are working for me." Well in a sense they can work for an individual to assist them in processing their taxes but remember you are talking to an agent of the government in a very real sense. 

So okay. "Individuals who obtain this elite status,' and again these terms like "elite status", I mean okay IRS, we get it. "Individuals who obtain this elite status must adhere to ethical standards and complete 72 hours of continuing education courses every three years." Well Attorneys have to deal with continuing legal education and yeah we are held to pretty high ethical standard, Attorneys, at the end of the day. Quoting further, and this is where I need to point this out, "Enrolled Agents like Attorneys and Certified Public Accountants, CPAs, have unlimited practice rights." Well within the bailiwick of IRS I think you could say that about Enrolled Agents. Again Enrolled Agents are not Attorneys though and there is a big difference there.

Now there was a time when I would have said well and you don't have privilege, Attorney-client privilege when you are dealing with an Enrolled Agent. I have done a deep dive on this and looked all this stuff up. Yeah there is some kind of like niche privilege if you want to call it that, that came about in I think 1998, the promulgation of a certain bunch of statutes where they said "well these Enrolled Agents, actually you do have a certain kind of privilege with them," okay. Fair enough, but I have got to be honest with you. Look Attorney-client privilege and the jurisprudence underlying it has evolved for hundreds of years. In fact most of the relevant case law pertaining to Attorney-client privilege actually comes about in a tax context. The thing to remember here, Attorney client privilege actually predates the US Constitution. It existed under the British system of law that we used up to and to the moment of if you will, the revolution in the United States which created the United States of America. When you analyze this stuff, you realize that when you are dealing with an Attorney, the laws and the jurisprudence and quite honestly the gravitas, I hate to say that, but the authority if you will, the underlying authority associated with the principle of Attorney-client privilege goes back a long way back in time compared to this newly created "privilege" that is associated with these Enrolled Agents. The point I am trying to make is when you are talking to an Attorney and you are talking to them under Attorney-client privilege, you can rest assured that not only are they duty-bound to keep your information privileged and confidential, but they are also, if they were somehow compelled to be put on the stand, the Court can't even hear certain things if it was said to an Attorney under privilege. From my study of this so-called privilege and Enrolled Agents, I don't see that it's precisely the same thing as Attorney-client privilege, I just don't. It's created by the state for agents of the state and that is not exactly a privilege that I would want to fall back on if I was in a position where I really needed to sort out some sort of tax matter; my personal opinion that is the case. 

Now that said, I think it's perfectly reasonable to utilize a Tax Attorney and an Enrolled Agent sort of in conjunction. There are certain instances; I've referred cases to CPAs for years; I have dealt with Enrolled Agents in the past and it sort of flows through me whatever the client needs to get done. Then I go deal with the CPA or I go deal with the Enrolled Agent. 

So the thing to take away from this video is Enrolled Agents exist. They do provide in many cases very valuable service, very valuable function but you need to understand that they are not the same thing as a Tax Attorney.