                                                             June 14, 1977


77-37     MEMORANDUM OPINION FOR THE
          DIRECTOR OF THE EXECUTIVE OFFICE
          FOR UNITED STATES ATTORNEYS
          Request of a Federal Employee—Appearance on
          Behalf of His Daughter in IRS Audit


   This is in response to your request for our views as to whether Mr.
A, an employee in the office of a United States Attorney, may appear
on behalf of his daughter in an Internal Revenue Service (IRS) office
audit of her tax return. It appears that Mr. A prepared his daughter’s
tax return based on information she supplied to him.
   A Federal employee is prohibited by 18 U.S.C. § 205(2) from acting
“as agent or attorney” for anyone, otherwise than in the proper dis­
charge of his official duties, before any agency or court in connection
with any m atter in which the United States is a party or has a direct
and substantial interest. This provision has not been construed to pro­
hibit a Federal employee from assisting another person in the prepara­
tion of a tax return, but it does generally prohibit a Federal employee
from representing the taxpayer in subsequent administrative or judicial
proceedings involving the tax return.
   However, 18 U.S.C. § 205 contains an exception permitting            em­
ployee to act as agent or attorney, with or without compensation, for
his or her parents, spouse, or child, except in matters in which he or
she has participated personally and substantially or are under his or her
official responsibility. It does not appear that Mr. A participated as a
Governm ent employee in matters relating to his daughter’s tax return.
He is a collecting agent after a civil or criminal judgment or fine has
been imposed, but he would not appear to have any “official responsi­
bility” within the meaning of 18 U.S.C. § 202(b) for IRS audits or other
administrative proceedings relating to tax collection. Therefore, it is our
opinion that Mr. A’s representation of his daughter in the audit and
related administrative proceedings is permitted by 18 U.S.C. § 205.
However, the statute and Departm ent o f Justice regulations require Mr.
A to receive the approval of the U.S. Attorney before he appears on
his daughter’s behalf. See 28 CFR 45.735-6(d).

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   It is not apparent from the materials you sent to us whether Mr. A is
employed as an attorney in the U.S. Attorney’s Office, so that the
practice of law is his profession within the meaning of 28 C FR 45.735-
9(a). If so, his representation of his daughter would presumably consti­
tute outside practice of law, requiring the approval of the Deputy
Attorney General under 28 CFR 45.735-9(c).
                                               L eon U lm an
                                Deputy Assistant Attorney General
                                               Office o f Legal Counsel




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