Friday, October 30, 2015
The D.C. Circuit ruled today that an association of CPAs and their firms had "competitor standing" to challenge an IRS program that allows previously uncredentialed tax return preparers who meet certain prerequisites to have their names listed in the IRS's online "Directory of Federal Tax Return Preparers."
The ruling is a victory for the association and allows the case to go forward on the merits.
The ruling is also a victory for anyone who wants to get into federal court to challenge an action that may give their competitors an edge, even if the link between the action and the edge is based only on "basic economic logic."
The IRS program allows previously uncredentialed tax return preparers--so-called "unenrolled preparers"--to get listed if they take a class and meet other requirements. The program is a boon to preparers who take advantage of it, because they'll get listed with the IRS and, as a result, get more tax preparation business. It'll also likely deal a blow to CPAs and other already-credentialed preparers, because they'll now have to compete toe-to-toe with lower-cost unenrolled preparers.
The association challenged the program for violating notice-and-comment rulemaking requirements. The district court dismissed the case for lack of standing. The association appealed and argued, among other things, competitor standing.
The D.C. Circuit agreed with the association. It wrote that association members "will face intensified competition as a result of the challenged government action. Specifically, participating unenrolled preparers will gain a credential and a listing in the government directory." The court accepted the association's claim that this "will 'dilute the value of a CPA's credential in the market for tax-return-preparer services' and permit unenrolled preparers to more effectively compete with and take business away from presumably higher-priced CPAs."
You might wonder why the link between the IRS program and the CPAs' harm isn't too speculative (under, say, Clapper v. Amnesty International). After all, the IRS program is voluntary, not compulsory, so it's not obvious that any unenrolled preparer will even participate; moreover, it's not obvious that IRS listing will benefit a participant; and moreover it's not obvious that listing will benefit a participant to the detriment of CPAs. The court had an answer to all this: "basic economic logic." The court explained:
To begin with, the link between the government-backed credentials offered to unenrolled preparers and the reputational benefit they will enjoy is hardly speculative. Indeed, the reputational benefit is the very point of the IRS Program. . . . Moreover . . . the IRS Program at issue here is both voluntary and clearly intended to offer competitive benefits to those unenrolled preparers who participate in the Program. "Basic economic logic" suggests that unenrolld preparers will choose to participate only if they believe the resulting reputational benefit will produce a substantial enough competitive advantage to outweigh their compliance costs.
The court declined to consider the IRS argument that the association's complaint wasn't within the "zone of interests protected or regulated by the statutory provision" it invokes, because the IRS didn't raise it at the district court.