ET Section 302 - Contingent Fees 

    .01 Rule 302—Contingent fees.

    A member in public practice shall not

    1. Perform for a contingent fee any professional services for, or receive such a fee from a client for whom the member or the member's firm performs,
      1. an audit or review of a financial statement; or
      2. a compilation of a financial statement when the member expects, or reasonably might expect, that a third party will use the financial statement and the member's compilation report does not disclose a lack of independence; or
      3. an examination of prospective financial information;

    1. Prepare an original or amended tax return or claim for a tax refund for a contingent fee for any client.

    The prohibition in (1) above applies during the period in which the member or the member's firm is engaged to perform any of the services listed above and the period covered by any historical financial statements involved in any such listed services.

    Except as stated in the next sentence, a contingent fee is a fee established for the performance of any service pursuant to an arrangement in which no fee will be charged unless a specified finding or result is attained, or in which the amount of the fee is otherwise dependent upon the finding or result of such service. Solely for purposes of this rule, fees are not regarded as being contingent if fixed by courts or other public authorities, or, in tax matters, if determined based on the results of judicial proceedings or the findings of governmental agencies.

    A member's fees may vary depending, for example, on the complexity of services rendered.

    [As adopted May 20, 1991.]

    Interpretation under Rule 302

    —Contingent Fees

    .02 302-1—Contingent fees in tax matters.

    This interpretation defines certain terms in rule 302 [ ET section 302.01] and provides examples of the application of the rule. When practicing before the IRS or other taxing authorities, members should ensure compliance with any requirements that are more restrictive.

    Definition of Terms
    1. Preparation of an original or amended tax return or claim for tax refund includes giving advice on events which have occurred at the time the advice is given if such advice is directly relevant to determining the existence, character, or amount of a schedule, entry, or other portion of a return or claim for refund.
    2. A fee is considered determined based on the findings of governmental agencies if the member can demonstrate a reasonable expectation, at the time of a fee arrangement, of substantive consideration by an agency with respect to the member's client. Such an expectation is deemed not reasonable in the case of preparation of original tax returns.

    The following are examples, not all-inclusive, of circumstances where a contingent fee would be permitted:

    1. Representing a client in an examination by a revenue agent of the client's federal or state income tax return.
    2. Filing an amended federal or state income tax return claiming a tax refund based on a tax issue that is either the subject of a test case (involving a different taxpayer) or with respect to which the taxing authority is developing a position.
    3. Filing an amended federal or state income tax return (or refund claim) claiming a tax refund in an amount greater than the threshold for review by the Joint Committee on Internal Revenue Taxation ($1 million at March 1991) or state taxing authority.
    4. Requesting a refund of either overpayments of interest or penalties charged to a client's account or deposits of taxes improperly accounted for by the federal or state taxing authority in circumstances where the taxing authority has established procedures for the substantive review of such refund requests.
    5. Requesting, by means of "protest" or similar document, consideration by the state or local taxing authority of a reduction in the "assessed value" of property under an established taxing authority review process for hearing all taxpayer arguments relating to assessed value.
    6. Representing a client in connection with obtaining a private letter ruling or influencing the drafting of a regulation or statute.

    The following is an example of a circumstance where a contingent fee would not be permitted:

    1. Preparing an amended federal or state income tax return for a client claiming a refund of taxes because a deduction was inadvertently omitted from the return originally filed. There is no question as to the propriety of the deduction; rather the claim is filed to correct an omission.

    [Revised effective May 31, 2011]

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