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SEC, F. DEA, F. Despite flagging this issue. Notice , I. These briefs neither make the authors a party to the lawsuit nor entitle them to present their arguments in court. IRS, No. Natural Res. Council, Inc. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Tax Training Inst. Department of Fin. During the most recent financial crisis, the Obama Administration took what appeared to be a promising initiative to slow down the increasing number of foreclosures occurring throughout the country.

The Home Affordable Modification Program HAMP , which was intended to be a win-win for creditors and debtors, would allow creditors to prevent greater losses associated with a foreclosed loan and allow debtors to keep their home. However, after several years of mediocre success, federal courts have begun to place liability on creditors for their perceived failure to save more homes from foreclosure. Although HAMP itself does not contain a private right of action, federal judges have been quick to use other legal doctrines, such as state consumer-protection and contract law, to hold creditors liable for issues arising during the mortgage-modification process.

This Essay attempts to outline the various ways in which courts impose this liability, and offers some suggestions for creditors who wish to avoid liability for their perceived shortcomings. Because there is no private right of action under HAMP, courts have created other equitable avenues of liability, including holding lenders and loan servicers liable under state unfair or deceptive trade practices acts and breach of contract claims for violations of HAMP protocols in the modification process.

HAMP was an initiative undertaken by the Obama Administration in the midst of the worst financial and foreclosure crises the country had experienced since the Great Depression. Although HAMP was created under the assumption that the mortgage-modification process was a win-win for creditors and debtors by allowing owners to avoid foreclosure and creditors to mitigate the losses that a default would bring, it quickly alienated both parties. In the wake of the most recent financial collapse and housing bubble burst, HAMP, which was overseen by the Treasury Department and funded by the Temporary Asset Relief Program, attempted to lower mortgage payments for distressed borrowers.

Potential Liability for Creditors. Although both case law and federal statutes explicitly state that HAMP does not provide a private right of action for debtors who feel mistreated before or during the mortgage-modification process, federal courts have interpreted HAMP to impose liability on creditors through other legal doctrines. While it is easy to view this as an alarming trend of judicial activism, given the stakes for borrowers and the opportunities litigation provides them, the increased judicial scrutiny is unlikely to recede.

Therefore, it is important for mortgage lenders and loan servicers to be fully aware of the various approaches that courts take in different jurisdictions to ensure they can enact comprehensive reforms of their mortgage-modification processes to avoid liability. However, servicers or mortgagees have ignored requests for modification or inconsistently applied modification standards. Additionally, some courts will impose obligations of good faith during the mortgage-modification negotiation stage, even if those negotiations do not occur through court-ordered or statutory mediation.

This good-faith standard is not mere judicial abstraction, as courts have taken hardline stances against lenders and loan servicers who fail to adequately participate in talks with the mortgagor. In IndyMac Bank F. For example, courts may find such a breach if mortgage lenders willfully fail to modify mortgages, or borrowers plead that lender or loan servicers instructed employees to falsify documents so that a modification would not have to be processed.

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Servicers and lenders have enjoyed greater success on issues regarding whether borrowers can attack loan-modification processing using the class-action process. The United States District Court for the District of Massachusetts recently declined to certify a class consisting of:. The proposed class action would have consisted of twenty-six classes from twenty-six different states. The court found that the classes would meet the requirements of Rule 23 a of the Federal Rules of Civil Procedure, consisting of numerosity, commonality, typicality, and adequacy.

With respect to breach of contract, the court favorably cited Young v. Wells Fargo Bank, N. Option One Mortgage Loan Trust 30 for the proposition that a trial period plan TPP could plausibly be read to require the servicer to offer a permanent modification if the borrower met the obligations under the agreement. Each borrower had to certify, represent.

In addition, each borrower had to make the required trial payments on a timely basis. Despite somewhat holding off the trend of advancing servicer liability, the Massachusetts federal district court made a point that individual questions, rather than class-wide questions, predominate servicing issues related to loan-modification review. This pronouncement is the converse of other courts ruling on cases of individual liability, such as Young and Wigod , which have allowed claims for lender liability under TPPs past the 12 b 6 stage.

The common thread is that situation-specific facts are critical. Moreover, the same situationally specific facts, which are necessary components of a well-pleaded complaint seeking lender liability, also cut against the possibility of creating a class of similarly situated plaintiffs harmed by the loan-modification process. Recently, federal regulators have begun to increase their oversight of the processes that lenders and loan servicers use during the modification process.

Creditors, including loan originators and loan servicers, are also liable for actions taken in the mortgage-modification process under state consumer-protection laws. This liability under consumer-protection statutes does not only encompass the processes that lenders use to come to a decision, but also extends to post denial actions that they take. In Boyd v. Bank , a seminal case in the jurisdiction on this issue, an Illinois federal district court held that violations of HAMP procedures created a sustainable private right of action for debtor-homeowners under the ICFA.

As popular sentiment towards lenders and loan servicers continues to sour, and stories about dual tracking 49 and improper denials for modifications continue to hit the press, courts will increasingly look to state consumer-protection laws to ensure that mortgage-modification processes accord with federal guidelines. Otherwise, courts will impose liability on lenders and loan servicers in the form of judicial sanctions or impairments on the foreclosure process.

They were enacted to directly benefit homeowners who were going through, or who were about to enter, the foreclosure process. Under federal common law, a third party can recover under a contract if it can show that the contract was made for its direct benefit, and that it is an intended beneficiary of the contract. After running the TPP Agreement through a standard contractual analysis, including determinations of whether there was a valid offer and consideration, 64 the court determined that there were sufficient allegations to support a cause of action under contract law.

Although Wells Fargo argued that the TPP Agreement was not a contractual offer, as it required further review by Wells Fargo before a permanent modification could be given, the court found that argument was unpersuasive. Although the court hints that this would not require the same payments made during the TPP, it appears that at least a good-faith attempt to make a permanent modification, consistent with HAMP-modification guidelines is a prerequisite.


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More recently, both the First and Ninth Circuits followed the reasoning of the Wigod court in holding that the language of a TPP sent to borrowers created a contractual relationship between a servicer and a borrower. Conclusions and Recommendations for Creditors and Loan Servicers.

Although a large segment of consumers are angry over the perceived ineffectiveness of the HAMP framework for mortgage modification, it is not a toothless initiative that lenders and loan servicers can ignore. Especially because courts have now had ample opportunity to add their own interpretations of SPAs and rule on modification best practices, creditors—including lenders and loan servicers—face substantial regulatory hurdles and potential liability to consumers for noncompliance with HAMP procedures.

From breach of contract claims to unfair or deceptive trade practices lawsuits, lenders and loan servicers must act with caution when entering into the realm of mortgage modification. First, private creditors and loan servicers for non-Fannie- and non-Freddie-backed loans could streamline the process for debtor-homeowners. The primary way that this could be accomplished is through the adoption of streamlined programs similar to the ones federal regulators introduced for Fannie- and Freddie-backed loans. This streamlined process drastically reduces the documentation requirement for debtors, as it requires only two initial instances of communication.

The streamlined process drastically reduces the flurry of documents that is initially exchanged between the two parties, which often results in creditors failing to acknowledge timely receipt of the necessary documents, and homeowners not responding to mortgage-modification proposals when asked for an imposing list of documents. One potential reason for the judicial creation of consumer-protection rules, as they relate to the modification process, could be the lack of perceived transparency or fairness with which creditors treat homeowners. While legalistic adherence to these new best practices is a great way for creditors to shield themselves from liability, merely hiding behind a formulaic checklist will never be enough to stem the tide of judicial activism.

Additionally, the retention of outside counsel who can regularly audit mortgage-modification files to check on lender or loan servicer inaccuracies that would have resulted in rejected modifications, could help quell popular ill will. Howard is a graduate of the George Washington University, from which he holds a B.

Six other justices who had staked out starkly contrasting positions on affirmative action in the past joined the opinion. The parties to the case each claimed they were pleased with the outcome, and both supporters and opponents of affirmative action hailed the decision a victory for their respective sides of the debate. In most respects, the Fisher decision dodged the key questions about affirmative action in college admissions: Does the Equal Protection Clause of the U. Constitution totally ban consideration of race in college admissions?

If not, what types of limited consideration of race are permissible? The Supreme Court refused to decide whether Grutter v. Seattle School District No. In the meantime, Justice Kennedy was able to use Fisher to advance his particular middle-of-the-road approach to become the governing doctrine in affirmative action cases. In Fisher , he acknowledged as he did in Grutter that colleges have a compelling interest in a diverse student body, but he significantly narrowed the scope of legitimate consideration of race to attain that goal which had been the basis for his dissent in Grutter.

Coalition to Defend Affirmative Action. That amendment achieves, for the State of Michigan, a total ban on affirmative action. Nevertheless, if the Court upholds the Michigan amendment, it would allow for state-by-state bans on affirmative action that would not be subject to Supreme Court review.

The Context of Fisher v.

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University of Texas at Austin. Abigail Fisher, a white female, brought suit against the University after she was denied admission to its undergraduate program. First, the governing precedents of Grutter and Gratz v.


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  • Bollinger 7 were relatively recent There certainly was some basis for that speculation. In Parents Involved , Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Thomas, and Alito, that rejected student-body diversity as a compelling interest in pupil assignments to elementary and secondary schools. Justices Sotomayor and Kagan were new to the Court since those decisions, but there were clear indicators of their sentiments.

    Everyone recognized that Justice Kennedy was going to be the key vote in Fisher and in clarifying the future of affirmative action because of the independent approach he had articulated in the Grutter , Gratz , and Parents Involved cases. Nevertheless, in separate concurring and dissenting opinions he staked out an idiosyncratic position—one that left open the possibility of affirmative action under very narrow circumstances.

    On the issue of whether diversity was a compelling interest, Justice Kennedy concluded that it could be, both in university admissions and in public school pupil assignment. In this respect, he disagreed with the conservatives. He also disagreed with the colorblind principle that race can never be considered in government action. Instead, he endorsed a very narrow standard for when race is permissible as a means to achieve diversity, and disagreed in each case with the conclusion of the liberals that the affirmative action programs had done so appropriately.

    Ramifications of the Fisher Decision. Justice Ginsburg was the sole dissenter. She argued that the University had carefully tailored its admission process after the model approved in Grutter. She concluded that Grutter controlled and the Texas plan should be upheld on that basis, without the need for remand to the Court of Appeals. For example, at the outset of the opinion, Justice Kennedy referenced Regents of the University of California v. Bakke , 15 Grutter , and Gratz as precedents addressing affirmative action in higher education.

    Petitioner presented and argued the case as a potential vehicle for reconsidering Grutter. Why did Justice Kennedy go out of his way to maintain this neutrality towards Grutter? The most notable example of this is Planned Parenthood of Southeastern Pennsylvania v. In Fisher , Kennedy was able to do much the same. Without explicitly referring to his dissenting opinion in Grutter , he imported the language and standards of that dissent into the Fisher majority opinion and won the endorsement of six other justices.

    He began his summary of the governing doctrine in Fisher with an extended discussion of Bakke , just as he did in his dissent in Grutter. The language that Kennedy used in Fisher reversing the Fifth Circuit and in his dissent in Grutter critical of the majority opinion , are strikingly similar. In both instances he concludes that the standard of strict scrutiny, required by Justice Powell in Bakke and in subsequent decisions, was not rigorously applied, and that deference was inappropriately given to the universities. Moreover, Justice Kennedy seems to view himself in the moderate, centrist tradition of Justice Powell, particularly on matters of race.

    In Bakke , Justice Powell was the single vote in a split, with the remaining justices divided into liberal and conservative blocs, much the same as Justice Kennedy straddles two blocs on the current Court. Returning to the question posed earlier—is Grutter still good law? He neither reaffirms nor challenges Grutter as precedent. After concluding that the Fifth Circuit had not employed a sufficiently rigorous form of strict scrutiny, he declined to apply the proper standard to the Texas admissions scheme. Because of the demographics of Texas high schools, there is substantial racial and ethnic diversity in the students admitted under the Top Ten Percent Law.

    This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. However, Justice Kennedy strongly rejected the concept of a critical mass as a legitimate goal in his Grutter dissent. It is even clearer that the four conservative justices would have found the use of race by the University to be unconstitutional.

    Is there something that he accomplished by leaving that issue open on remand? Something that was more important to him than a definitive ruling on the particular Texas statute? If he had invalidated the Texas law, it would have been a stronger anti-affirmative action decision, but it is likely that only the four conservatives would have joined it. Instead, he wrote an opinion that achieved what he wanted in terms of moving doctrine towards his Grutter dissent, and it garnered legitimacy and possibly more durability as a result of the support of a coalition of conservatives and liberals.

    There was a long delay between the oral argument in October , and the issuance of the decision in June Clearly, the justices did not come to this decision quickly or easily.

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    Presumably it is the result of quite a bit of back-and-forth, circulating draft opinions, and responding memoranda. They presumably saw a benefit from a decision that avoided potential damage to affirmative action. Justice Ginsburg, of course, chose not to join the compromise. How long will this truce hold?

    While the Fisher case was still pending, the Supreme Court granted review of Schuette v. As the name of the case suggests, it involves affirmative action and an equal protection claim—might it provide a resolution of the issues that were dodged by Justice Kennedy in Fisher? In a word, no. Fisher and Schuette raise distinct constitutional issues and rely on different lines of precedent.

    The Schuette litigation arises out of efforts by opponents of affirmative action to use state referenda processes to ban affirmative action as a matter of state constitutional law. Section 1 of Proposal 2 provides:. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

    Section 2 of Proposal 2, which is not the focus of the Schuette litigation, is a broader prohibition on the consideration of race by the state not just by colleges and schools. The California Supreme Court and the Ninth Circuit Court of Appeals subsequently upheld Proposal after it was challenged on equal protection grounds. Thus, the equal protection issue in Schuette is the converse of Fisher : In Fisher , the question was whether a state university can choose to take race into account in university admissions, whereas in Schuette , the question is whether a state university can be barred from taking race into account.

    While both cases involve interpretation of the Equal Protection Clause, they are based on two distinct doctrines within the realm of equal protection. In response, voters mounted a successful referendum campaign to amend the city charter to repeal that ordinance and to prevent the enactment of any similar law, unless approved in a city-wide referendum.

    The Court struck down the charter amendment because it created a higher and more difficult political burden—approval by a city-wide referendum—for those who wanted protection from racial discrimination than it did for any other type of housing ordinance, which only needed the support of the City Council. The statewide initiative had the effect of not only invalidating that busing plan, but also of imposing a more onerous political burden on those seeking to promote racial integration than on those seeking to use busing to achieve other nonracial policy goals.

    The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. Finally, they concluded that Proposition 2 did not reallocate political power in a way that violates equal protection.

    Predicting what the Supreme Court will decide in Schuette is hampered by the fact that none of the current justices have ruled on a political-restructuring equal protection claim. In , the Court that decided Hunter by an margin was considerably more liberal on racial issues than later Courts. On the current Court, the votes of the four conservatives seem predictable.

    Their position—expressed in the Grutter dissents of Justices Scalia and Thomas, and in the majority opinion in Parents Involved on behalf of all four—is that equal protection prohibits any consideration of race. There is no reason to think that they would find that equal protection is violated by a state constitutional amendment that says exactly that. As to the liberals, Justice Kagan is again recused because of her earlier involvement as Solicitor General.

    It seems very likely that Justices Ginsburg and Breyer would support the political restructuring argument in Schuette. Evans , 45 which employed reasoning similar to the political restructuring doctrine. She has acknowledged the importance of affirmative action in her own career, which allowed her to attend Princeton University as an undergraduate; she has spoken against the colorblind approach of the four conservatives, which would bar affirmative action; and her vote in Fisher indicates her support of diversity in higher education as a compelling interest.

    In general, her voting has been most closely aligned with Justices Kagan, Ginsburg, Breyer, and Kennedy, and with the exception of Kagan who was not on the Court at the time , they were all part of the Romer majority. This leads us again to Justice Kennedy. There is good reason to think that he will again be the key vote. If he sides with the conservatives, it would be a decision upholding Proposition 2. If he sides with the three liberals participating in the appeal, the resulting split would mean that the Court of Appeals decision striking down the amendment will stand.

    What insights do we have about his point of view? There are conflicting signals. One potentially important clue is an opinion by Justice Kennedy— Romer v. Evans —which has been largely overlooked in the Schuette litigation thus far. Local antidiscrimination laws protecting homosexuals were invalidated by a voter referendum that amended the Colorado Constitution.

    Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

    To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. The Colorado Supreme Court decision that was reviewed in Romer had relied on the restructuring theory, and explicitly on the Hunter and Seattle School District decisions.

    Yet, Kennedy stated that he was not basing his decision in Romer on that rationale:. To reach this conclusion, the state court relied on our voting rights cases, and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e. Erickson ;. Washington v. Seattle School Dist. We granted certiorari and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court.

    Despite his reliance on reasoning similar to Hunter and Seattle School District , he explicitly distanced his decision from those cases. Why did he do that?

    It could be a reflection of his disagreement with the political restructuring doctrine, but then why would he write an opinion so closely tracking that rationale? Another possibility is that it was necessary for him to disclaim that basis for the decision in order to gain support from other justices.

    In order to bring her into the majority in Romer , he may have had to include the language disclaiming reliance on Hunter and Seattle School District. The latter was the basis for his subsequent majority opinions in Lawrence v. Texas and United States v. Windsor , when there were no political restructuring arguments involved. Another reason to question the likelihood of Justice Kennedy using the political restructuring doctrine to strike down Proposition 2 in Schuette is the fact that Justice Powell wrote the dissenting opinion on behalf of four justices in Seattle School District.

    In his critique of the majority opinion, Powell anticipated the very question raised in Schuette :. Under its holding the people of the State of Washington apparently are forever barred from developing a different policy on mandatory busing where a school district previously has adopted one of its own.

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    This principle would not seem limited to the question of mandatory busing. Thus, if the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that authority traditionally dictated admissions policies. As a constitutional matter, the dean of the law school, the faculty of the university as a whole, the university president, the chancellor of the university system, and the board of regents might be powerless to intervene despite their greater authority under state law.

    If local employment or benefits are distributed on a racial basis to the benefit of racial minorities, the State apparently may not thereafter ever intervene. It is likely that the Court will reverse the Sixth Circuit Court of Appeals in Schuette , and will hold that the Equal Protection Clause is not violated by the Michigan constitutional prohibition on affirmative action. Justice Kennedy and the four conservatives will form the majority, with Justices Ginsburg, Breyer and Sotomayor in dissent. However, Justice Kennedy is not likely to reject the political restructuring doctrine completely, which would presumably require overruling Hunter and Seattle School District.

    He is more likely to write an opinion that distinguishes those decisions, and declines to extend them to control in Schuette. For example, he could distinguish Hunter , Seattle School District , and Romer if he wants to address it on the grounds that they involved state laws that made it politically more difficult for minorities to protect themselves against discrimination , thereby interfering with the core value of nondiscrimination in equal protection. In contrast, Proposition 2 makes it harder for minorities to gain preferential treatment , which arguably runs counter to the core value of nondiscrimination, and which he has said is presumptively unconstitutional unless able to survive strict scrutiny.

    He might well conclude that a measure that makes it politically more difficult to gain preferential treatment which is not constitutionally protected does not offend equal protection principles in the way that Hunter and Seattle School District viewed measures that made it more difficult to protect against racial discrimination which is constitutionally protected. If that is the outcome, the net effect of Fisher and Schuette will be that the opponents of affirmative action will not have achieved their primary goal—a national ban based on the U.

    Constitution—but they will be able to lobby for state-by-state prohibitions, without Supreme Court review. Robert H. Justice Kennedy has used a similar tactic before in order to cobble together a majority. For instance, in Gonzales v. He then summarized the principles from Roe and Casey , but was careful not to endorse them which would have lost the votes of Justices Thomas and Scalia.

    Justice Kennedy did not include any reference for his statement that the parties were not challenging the correctness of Grutter. In his concurrence, Justice Scalia reached a similar conclusion, citing to a statement of counsel at oral argument that is ambiguous.

    See Fisher , S. Casey, U. Wade, U. Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued.

    Grutter v. Bollinger, U. Fisher , S. The lower courts and the briefs of the parties have used several terms interchangeably for the doctrine. See Coal. Regents of Univ. Schuette v. Coalition to Defend Affirmative Action, S. Equity v. Wilson, F. In response to and in order to overturn a state-court ordered busing plan, the California amendment restricted state-court ordered busing for desegregation purposes to those instances in which a federal court would order busing to remedy a Fourteenth Amendment violation.

    Justice Powell wrote the majority opinion in Crawford , and distinguished it from Seattle School District , reasoning that the California amendment only affected actions by the state courts, and did not deprive local school districts from developing their own busing plans. It thus did not affect the kind of political restructuring that was the fatal flaw in Seattle School District.

    The petitioner in Schuette is not relying on Crawford. And this practical knowledge will transfer to you. And as a student of The Income Tax School, you are not in this alone! You will receive personalized instructional support and feedback, as well as access to student and instructor forums. Once you have successfully completed the Comprehensive Tax Course of our tax school, you will have the skills and knowledge required to prepare tax returns for the general public. In case you were wondering, no previous experience in tax preparation or accounting is required.

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    You will benefit from tax class authors and expert instructors who have years of real world experience working with individuals and small businesses on a daily basis. And this practical knowledge will transfer to you. And as a student of The Income Tax School, you are not in this alone! You will receive personalized instructional support and feedback, as well as access to student and instructor forums.

    Once you have successfully completed the Comprehensive Tax Course of our tax school, you will have the skills and knowledge required to prepare tax returns for the general public. In case you were wondering, no previous experience in tax preparation or accounting is required. Schedule C CE Seminar quantity. Upon successful completion of this course, you will be able to: Learn to identify and discuss various types of business entities Learn the advantages and disadvantages of this type of business entity Study the different steps necessary to develop a sole proprietorship Learn the proper record-keeping for a sole proprietorship and the length of time the taxpayer is expected to keep business records Learn the types of accounting methods Complete a return including: Schedule C, Schedule SE, Form ,Expenses for Business Use of Your Home, Form ,Depreciation and Amortization Learn the various types of income earned by a sole proprietorship Learn about the cost of good sold, inventory valuation, beginning inventory, ending inventory and uniform capitalization rules.

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