The ABA Tax Section has submitted comments to the IRS on Disciplinary Procedures of the Office of Professional Responsibility (12/8/05) (17 pages).  Here is the Executive Summary:

During the May 2004 Section of Taxation Meeting in Washington, D.C., the Director, IRS Office of Professional Responsibility (“OPR”), discussed significant changes being made in OPR and asked whether Special Trial Judges (“STJs”) of the United States Tax Court (“Tax Court”) would be a more appropriate trier of fact in OPR disciplinary hearings than the administrative law judges (“ALJs”) who currently hear these cases. In response to this inquiry, the Section of Taxation’s Standards of Tax Practice Committee formed a task force to study the disciplinary process. Based on the report of the task force and additional input, the Sections, the Division, and the Committee recommend the following:

Recommendation One: The current structure of the disciplinary process — involving agency investigation, a hearing, and both administrative and judicial review — should be retained.

We recommend retention of the process currently in place because it appropriately balances protections for the practitioner and the interests of the government and is fully consistent with the Administrative Procedure Act (“APA”).

Recommendation Two: ALJs from other agencies should continue to preside over OPR disciplinary hearings. STJs of the Tax Court should not be used for such proceedings.

We recommend that, in order to preserve the independence and the resources of the Tax Court, ALJs from other agencies, rather than STJs of the Tax Court, should continue to preside over OPR disciplinary hearings.

Recommendation Three: Treasury should continue to use ALJs from other agencies for OPR disciplinary hearings, rather than employing its own ALJs, so long as the case load remains at or near current levels.

We recommend that the United States Department of the Treasury (“Treasury”) should continue to employ ALJs from other federal agencies rather than its own ALJs. OPR hearings do not currently involve issues that require a technical tax background, and it is not clear that such a background will be required in the future. Furthermore, even if the technical tax scope of OPR hearings were to expand, it is by no means clear that a judge that is a tax specialist is preferable to an ALJ from another agency.

Recommendation Four: OPR should increase its effort to educate practitioners about the types of conduct that are unacceptable.

To increase compliance, we recommend that OPR take steps to educate practitioners about specific types of conduct that are unacceptable under Circular 230. These efforts should include such outreach techniques as publishing hypothetical case studies to illustrate the applicable standards.