Today, Nov. 3, 2011, the IRS issued Notice 2011-91 on Certain Enrolled Retirement Plan Agents Not Required to Obtain a PTIN. The notice is a short 2-pages long.
It states that the IRS intends to amend Circular 230 to remove the requirement contained in Section 10.4(b) that an individual who wants to become an ERPA, or renew their status as an ERPA, must have a valid preparer tax identification number (PTIN). Notice 2011-91 says effective immediately, ERPAs and applicants to become ERPAs are not required to have a PTIN to apply for enrollment or renew enrollment as an ERPA. ERPAs must still obtain a PTIN if, for compensation, they prepare, or assist in the preparation of, all or substantially all of any tax return or claim for refund that is not on the list of forms exempt from the PTIN requirement as provided in section 1.03 of Notice 2011-6 or any future guidance.
This is good news for the ERPAs, and good news for the industry. Notice 2011-91 does create one problem. It says
“Notice 2011-6 further provides a list of forms for which no PTIN is required. Among the forms included on this list are the Form 5300 and the Form 5500 series returns.”
Earlier this year, during a webinar hosted by the IRS, the IRS stated that Notice 2011-6 did not exempt the entire Form 5300 series from the PTIN requirements. I don’t think it is fair to quote statements made by IRS personnel during webinars because the webinars provide such a tremendous benefit to the ERPA community by providing great information along with free ERPA CPE credit for attending, and no one should be zinged for making a misstatement during a live presentation.
The problem here is that their statements during the webinar were very clear. Only three forms from the Form 5300 series were exempted from the PTIN requirement in Notice 2011-6 – Form 5300, Form 5307, and Form 5310 – and not the entire Form 5300 series. At that time, the IRS said it was considering exempting the entire Form 5300 series from the PTIN requirements, and would issue a new Notice or Revenue Procedure if and when this decision was made. I don’t think Notice 2011-91 can be read as that future guidance which exempts the entire Form 5300 series from the PTIN requirements.
Whether Form 5300 or the entire Form 5300 series has been exempted from the PTIN requirements is a non-issue until you need to file a determination letter application for a type of plan which includes a form from the Form 5300 series which was not excluded by Notice 2011-6. For example, Form 5309 is required as part of a determination letter application for ESOPs/KSOPs. Form 5309 is part of the Form 5300 series but it was not includes on the list of forms exempted from the PTIN requirements by Notice 2011-6, so do you need a PTIN to file a determination letter application for an ESOP or not.
