You cannot represent a client before the Internal Revenue Service without completing an IRS Form 2848 (Power of Attorney and Declaration of Representative) that designates you as a representative.¹ Occasionally, Form 2848 can be problematic. Sometimes, an attorney must list which acts are authorized for the representative to perform with limited information. Sometimes, new issues requiring authorization to perform acts not included in the original form can arise.

Under Internal Revenue Code Section U.S.C. §6103(a), no officer or employee of the United States (including former employees or officers) may disclose to a third person any tax return or tax return information unless, under §6103(e)(6), that third person is an attorney in fact authorized in writing to receive such information. Potential attorneys in fact are limited to licensed attorneys, certified public accountants, enrolled agents, enrolled actuaries, enrolled retirement plan agents, people approved for temporary recognition, and people involved in rulemaking.² Rules for written authorization of an attorney in fact are contained in 26 CFR §601.503(a). They include specifying:

• the type of tax involved;
• the federal tax form number;
• the specific year(s)/period(s) involved;
• in estate matters, the decedent’s date of death;
• a clear expression of the taxpayer’s intention concerning the scope of authority granted to the recognized representative(s); and
• a declaration that the representative qualifies as described in §601.502(c).³

A properly completed Internal Revenue Service Form 2848 satisfies the requirements for both power of attorney as described above in §601.503(a) and the appropriate declaration by the person representing the taxpayer.

If there is a defect in your power of attorney, the IRS will reject it and without it, you cannot represent your client for IRS purposes. If a new matter arises that is not on your power of attorney, your power of attorney will not cover it.

§601.503(b)(3) contains a special provision that allows you to unilaterally amend the power of attorney if you have a general power of attorney with two specified paragraphs (items (i) and (ii) below):

(3) Special provision. The Internal Revenue Service will not accept a power of attorney which fails to include the information required by §§601.503(a)(1) through (5). If a power of attorney fails to include some or all of the information required by such section, the attorney-in-fact can cure this defect by executing a Form 2848 (on behalf of the taxpayer) which includes the missing information. Attaching a Form 2848 to a copy of the original power of attorney will validate the original power of attorney (and will be treated in all circumstances as one signed and filed by the taxpayer) provided the following conditions are satisfied —

(i) The original power of attorney contemplates authorization to handle, among other things, federal tax matters (e.g., the power of attorney includes language to the effect that the attorney-in-fact has the authority to perform any and all acts).

(ii) The attorney-in-fact attaches a statement (signed under penalty of perjury) to the Form 2848 which states that the original power of attorney is valid under the laws of the governing jurisdiction.

Having a short, general power of attorney that contains the two paragraphs above allows you to fix a Form 2848 should the original form signed by your client fall short of what you need.

DIGITAL SIGNATURES AND ONLINE SUBMISSIONS

While you must handwrite your signature on a Form 2848 if you file by mail or by fax,⁴ a time-saving digital signature is an option if you file online. Digital, electronic, or typed-font signatures are not valid for a Form 2848 filed by mail or by fax.⁵ A Form 2848 with an electronic signature image or digitized image of a handwritten signature may only be submitted online at IRS.gov/Submit2848.⁶

The digital signature is a time saver. With a handwritten signature, you must print, sign, scan, and email — and then print and scan again after the Form 2848 is signed by the client. With your digital signature already on the form, it can be immediately uploaded to the IRS after it is signed, scanned, and returned by the client. In such cases, remember to tell the client to scan and return all pages.

SPECIAL SITUATIONS

Fiduciaries
A fiduciary does not need a Form 2848 power of attorney to act on behalf of an estate or a trust. A fiduciary uses a Form 56 (Notice Concerning Fiduciary Relationship) to act on behalf of an estate or trust,⁷ but a fiduciary who appoints a representative will use a Form 2848 power of attorney for that purpose.

Dissolved Business Entities
For dissolved partnerships, each former partner must execute a Form 2848 power of attorney. If a partner is deceased, the legal representative of each deceased partner — or a person having legal control over the disposition of the partnership interest and/ or the share of partnership assets of the deceased partner — must execute a Form 2848 power of attorney in their place.⁸

For a dissolved corporation, IRS officials may require submission of a statement showing the total number of outstanding shares of voting stock as of the date of dissolution, the number of shares held by each signatory to a power of attorney, the date of dissolution, and a representation that no trustee has been appointed.⁹