Representing Myself vs. CPA vs. Tax Attorney: Who Should Represent Me?

So the first thing I'd like you to consider is that tax attorneys handle audits all the time, at least those tax attorneys who practice in tax controversy and who deal with state payroll tax issues. We're frequently involved in EDD audits. We've probably got maybe a dozen or more payroll tax audits ongoing going on in our firm right now. So we're familiar with the circumstances, we're familiar with the territory and we know how to handle them very well. Some CPAs have a good familiarity with payroll taxes because they do them a lot. Most CPAs do not. Most CPAs don't get involved in controversy matters that often and so they generally defer to a tax attorney or to somebody else but the advantage to having a CPA do it for you, as long as that CPA isn't the person to prepare the payroll tax returns, is that

the CPA generally has some familiarity with the company. They generally have some familiarity with the independent contractors going in and the CPA can generally mitigate the issues. The big disadvantage to CPAs is that CPAs don't necessarily understand a lot of the procedural elements that come with EDD audits. So for example if there's a disagreement in the audit and the EDD audit has to go into the appeals process, the CPA may not be the best person to handle it and by far if I'm going to go into appeals on an EDD matter, I want to be the person that handled the audit. The reason for that is while I'm going through the audit, as a tax attorney I'm working to build the record. I'm treating every case like it's going to go into appeal. So every line in that audit report, I'm constantly massaging and trying to get the the best possible outcome in my favor. A lot of CPAs don't go through the appeals process, they don't know to do that. Consequently if you're going to have somebody from your company representing you, you can do that. That's obviously the lowest cost option, to just handle it internally. The problem with not having a third party representative is that the EDD auditor can ask you direct questions and that third party representative is going to be able to avoid those questions. If you have somebody from your company do it, that person from the company isn't going to be able to avoid questions so the potential if you represent yourself in the audit is that you're exposing yourself to risk. What I recommend as a first step, whether or not you decide to handle your own EDD audit, is at least go talk to a tax professional and get some sort of diagnosis. Understand what the risk is, understand what the playing field is, and then if you feel confident enough that the matter will resolve itself, then by all means go forward and do that. There's no sense in getting a tax attorney involved if there's not value that we're going to be able to provide in the situation, but often times, and I say this from experience, there is a lot of value that we can provide even just handling routine issues or at least serving as the face during the audit meeting because oftentimes we're able to control the presentation, move the auditor through the process and do so much more efficiently than either someone from your company or a CPA because we just know the process better than those individuals. So that's what the pros and cons are and that's kind of the landscape when deciding who to have as your representative.


Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law