PART 8—PRACTICE BEFORE THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS Authority: Sec. 3, 23 Stat. 258 (31 U.S.C. 1026); 5 U.S.C. 301, 500, 551-559; and Reorganization Plan No. 26 of 1950, 15 FR 4935, 64 Stat. 1280, as amended. Source: 42 FR 33026, June 29, 1977, unless otherwise noted. Subpart A—General Requirements § 8.1 Scope. This part contains rules governing the recognition of attorneys, certified public accountants, enrolled practitioners, and other persons representing clients before the Bureau of Alcohol, Tobacco and Firearms. § 8.2 Persons who may practice. (a) Attorneys. (b) Certified public accountants. (c) Enrollment practitioners. (d) Limited practitioners. (e) Restrictions on Government officers and employees. (f) Restrictions on State officers and employees. (g) Customhouse brokers. (Approved by the Office of Management and Budget under control number 1512-0418) (18 U.S.C. 203, 205; 5 U.S.C. 552(a) (80 Stat. 383, as amended)) [42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984] § 8.3 Conference and practice requirements. Conference and practice requrements of the Bureau of Alcohol, Tobacco and Firearms, including requirements for powers of attorney are set forth in: (a) 26 CFR part 601, subpart E (or those regulations as recodified in 27 CFR part 71 subsequent to the effective date of these regulations, 31 CFR part 8) with respect to all representations before the Bureau except those concerning license or permit proceedings; (b) 27 CFR part 200 with respect to proceedings concerning permits issued under the Federal Alcohol Administration Act or the Internal Revenue Code; (c) 27 CFR 47.44 with respect to proceedings concerning licenses issued under the Arms Export Control Act (22 U.S.C. 2778); (d) 27 CFR part 178, subpart E, with respect to proceedings concerning licenses issued under the Gun Control Act of 1968 (18 U.S.C. Chapter 44); and (e) 27 CFR part 181, subpart E, with respect to proceedings concerning licenses or permits issued under the Organized Crime Control Act of 1970 (18 U.S.C. Chapter 40). § 8.4 Director of Practice. (a) Appointment. (b) Duties. § 8.5 Records. (a) Availability. (b) Disciplinary proceedings. § 8.6 Special orders. The secretary reserves the power to issue special orders as he or she may deem proper in any cases within the scope of this part. Subpart B—Definitions § 8.11 Meaning of terms. As used in this part, terms shall have the meaning given in this section. Words in the plural shall include the singular, and vice versa. The terms include including Administrative Law Judge. Attorney. Bureau. Certified public accountant. CFR. Director. Enrolled practitioner. Practice before the Bureau. Secretary. U.S.C. Subpart C—Enrollment Procedures § 8.21 Eligibility for enrollment. (a) General qualifications. (b) Technical qualifications. (1) Minimum criteria required of an enrolled practioner will consist of: 5 years employment with the Treasury Department in a responsible position which would familiarize the person with applicable laws and regulations; or 5 years employment in a regulated industry in a responsible position which would familiarize the person with applicable laws and regulations; or possession of a law degree; or other significant experience such as the prior respresentation of persons before the Internal Revenue Service or the Bureau of Alcohol, Tobacco and Firearms. (2) An enrolled paractioner may demonstrate technical knowledge in one or more of the several areas of laws and regulations administered by the Bureau (alcohol, tobacco firearms, or explosives matters). (c) Natural persons. (d) Attorneys, certified public accountants. [42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977] § 8.22 Application for enrollment. (a) Information to be furnished. (b) Fee. (c) Execution under oath. (d) Filing. (e) Additional information. (Approved by the Office of Management and Budget under control number 1512-0418) (Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a); 5 U.S.C. 552(a) (80 Stat. 383, as amended)) [42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977, as amended at 49 FR 14944, Apr. 16, 1984] § 8.23 Denial of enrollment; appeal. (a) The Director, in denying an application for enrollment, shall inform the applicant as to the reasons. The applicant may, within 30 days after receipt of the notice of denial, file a written appeal together with reasons in support thereof, with the Director of Practice. The Director of Practice shall render a decision on the appeal as soon as practicable. (b) An applicant may, within 30 days after receipt of the decision of the Director of Practice in sustaining a denial of enrollment, appeal the decision to the Secretary. § 8.24 Enrollment cards. The Director shall issue an enrollment card to each practitioner who is enrolled to practice before the Bureau. Each enrollment card is valid for a period of 5 years as long as the holder remains enrolled and in good standing before the Bureau. Unless advised to the contrary by the Director, any officer or employee of the Bureau may consider the holder of an unexpired enrollment card to be authorized to practice before the Bureau in the subject area or areas indicated upon the card (alcohol, tobacco, firearms, or explosives matters). § 8.25 Renewal of enrollment card. (a) Period of renewal. (b) Application. (c) Fee. (Approved by the Office of Management and Budget under control number 1512-0418) (5 U.S.C. 552(a) (80 Stat. 383, as amended)) [42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984] § 8.26 Change in enrollment. (a) Change in area of practice. (b) Application. (c) Fee. (Approved by the Office of Management and Budget under control number 1512-0418) (5 U.S.C. 552(a) (80 Stat. 383, as amended)) [42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984] § 8.27 Enrollment registers. The Director shall maintain, for public inspection, a register of all persons enrolled to practice before the Bureau and the subject areas in which each person is enrolled to practice, a register of all persons disbarred or suspended from practice, and a register of all persons whose applications for enrollment before the Bureau have been denied. § 8.28 Termination of enrollment. (a) Attorneys, certified public accountants. (b) Expiration of enrollment. § 8.29 Limited practice without enrollment. (a) General. (1) An individual may represent another individual who is his or her regular full-time employer, may represent a partnership of which he or she is a member or a regular full-time employee, of may represent without compensation a member of his or her immediate family. (2) Corporations (including parent corporations, subsidiaries or affiliated corporations), trusts, estates, associations, or organized groups may be represented by bona fide officers or regular full-time employees. (3) Trusts, receiverships, guardianships, or estates may be represented by their trustees, receivers, guardians, administrators, executors, or their regular full-time employees. (4) Any government unit, agency, or authority may be represented by an officer or regular employee in the course of his or her official duties. (5) Unenrolled persons may participate in rulemaking as provided in 5 U.S.C. 553. (b) Special appearances. Subpart D—Duties and Restrictions Relating to Practice § 8.31 Furnishing of information. (a) To the Bureau. (b) To the Director of Practice. § 8.32 Prompt disposition of pending matters. No attorney, certified public accountant, or enrolled practitioner may unreasonably delay the prompt disposition of any matter before the Bureau. § 8.33 Accuracy. Each attorney, certified public accountant, and enrolled practitioner shall exercise due diligence in: (a) Preparing or assisting in the preparation of, approving, and filing returns, documents, affidavits, and other papers relating to Bureau matters; (b) Determining the correctness of any representations made by him or her to the Bureau; and (c) Determining the correctness of any information which he or she imparts to a client with reference to any matter administered by the Bureau. § 8.34 Knowledge of client's omission. Each attorney, certified public accountant, or enrolled practitioner who knows that a client has not complied with applicable law, or has made an error in or omission from any document, affidavit, or other paper which the law requires the client to execute, shall advise the client promptly of the fact of such noncompliance, error, or omission. § 8.35 Assistance from disbarred or suspended persons and former Treasury employees. No attorney, certified public accountant or enrolled practitioner shall, in practice before the Bureau, knowingly and directly or indirectly: (a) Employ or accept assistance from any person who is under disbarment or suspension from practice before any agency of the Treasury Department; (b) Accept employment as associate, correspondent, or subagent from, or share fees with, any such person; (c) Accept assistance in a specific matter from any person who participated personally and substantially in the matter as an employee of the Treasury Department. [44 FR 47059, Aug. 10, 1979] § 8.36 Practice by partners of Government employees. No partner of an officer or employee of the executive branch of the U.S. Government, of any independent agency of the United States, or of the District of Columbia, may represent anyone in any matter administered by the Bureau in which the Government employee participates or has participated personally and substantially as a Government employee, or which is the subject of that employee's official responsibility. § 8.37 Practice by former Government employees. (a) Violation of law. (b) Personal and substantial participation. (c) Official responsibility. (d) Aid or assistance. (18 U.S.C. 207) § 8.38 Notaries. No attorney, certified public accountant, or enrolled practitioner may, with respect to any matter administered by the Bureau, take acknowledgements, administer oaths, certify papers, or perform any official act in connection with matters in which he or she is employed as counsel, attorney, or practioner, or in which he or she may be in any way interested before the Bureau. (26 Op. Atty. Gen. 236) § 8.39 Fees. No attorney, certified public accountant, or enrolled practitioner may charge an unconscionable fee for representing a client in any matter before the Bureau. § 8.40 Conflicting interests. No attorney, certified public accountant, or enrolled practitioner may represent conflicting interests in practice before the Bureau, except by express consent of all directly interested parties after full disclosure has been made. § 8.41 Solicitation. (a) Advertising and solicitation restrictions. (2) No attorney, certified public accountant or enrolled practitioner shall make, directly or indirectly, an uninvited solicitation of employment, in matters related to the Bureau. Solicitation includes, but is not limited to, in-person contacts, telephone communications, and personal mailings directed to the specific circumstances unique to the recipient. This restriction does not apply to: (i) Seeking new business from an existing or former client in a related matter; (ii) solicitation by mailings, the contents of which are designed for the general public; or (iii) non-coercive in-person solicitation by those eligible to practice before the Bureau while acting as an employee, member, or officer of an exempt organization listed in sections 501(c) (3) or (4) of the Internal Revenue Code of 1954 (26 U.S.C.). (b) Permissible advertising. (i) The name, address, telephone number, and office hours of the practitioner or firm. (ii) The names of individuals associated with the firm. (iii) A factual description of the services offered. (iv) Acceptable credit cards and other credit arrangements. (v) Foreign language ability. (vi) Membership in pertinent, professional organizations. (vii) Pertinent professional licenses. (viii) A statement that an individual's or firm's practice is limited to certain areas. (ix) In the case of an enrolled practitioner, the phrase “enrolled to practice before the Bureau of Alcohol, Tobacco and Firearms.” (x) Other facts relevant to the selection of a practitioner in matters related to the Bureau which are not prohibited by these regulations. (2) Attorneys, certified public accountants and enrolled practitioners may use, to the extent they are consistent with the regulations in this section, customary biographical insertions in approved law lists and reputable professional journals and directories, as well as professional cards, letterheads and announcements: Provided, (c) Fee information. (i) Fixed fees for specific routine services. (ii) Hourly rates. (iii) Range of fees for particular services. (iv) Fee charged for an initial consultation. (2) Attorneys, certified public accountants and enrolled practitioners may also publish the availability of a written schedule of fees. (3) Attorneys, certified public accountants and enrolled practitioners shall be bound to charge the hourly rate, the fixed fee for specific routine services, the range of fees for particular services, or the fee for an initial consultation published for a reasonable period of time, but no less than thirty days from the last publication of such hourly rate or fees. (d) Communications. (e) Improper associations. Provided, [44 FR 47060, Aug. 10, 1979] § 8.42 Practice of law. Nothing in the regulations in this part may be construed as authorizing persons not members of the bar to practice law. Subpart E—Disciplinary Proceedings § 8.51 Authority to disbar or suspend. The Secretary, after due notice and opportunity for hearing, may suspend or disbar from practice before the Bureau any attorney, certified public accountant, or enrolled practitioner shown to be incompetent, disreputable or who refuses to comply with the rules and regulations in this part or who shall, with intent to defraud, in any manner willfully and knowingly deceive, mislead, or threaten any client or prospective client, by word, circular, letter, or by advertisement. (Sec. 3, 23 Stat. 258 (31 U.S.C. 1026)) § 8.52 Disreputable conduct. Disreputable conduct for which an attorney, certified public accountant, or enrolled practitioner may be disbarred or suspended from practice before the Bureau includes, but is not limited to: (a) Conviction of any criminal offense under the revenue laws of the United States; under any other law of the United States which the Bureau enforces pursuant to Treasury Department Order No. 221 (37 FR 11696) effective July 1, 1972; or for any offense involving dishonesty or breach of trust. (b) Giving false or misleading information, or participating in any way in the giving of false or misleading information, to the Bureau or any officer or employee thereof, or to any tribunal authorized to pass upon matters administered by the Bureau in connection with any matter pending or likely to be pending before them, knowing the information to be false or misleading. Facts or other matters contained in testimony, Federal tax returns, financial statements, applications for enrollment, affidavits, declarations, or any other document or statement, written or oral, are included in the term “information”. (c) Solicitation of employment as prohibited under § 8.41, the use of false or misleading representations with intent to deceive a client or a prospective client in order to procure employment, or intimating that the practitioner is able improperly to obtain special consideration or action from the Bureau or an officer or employee thereof. (d) Willfully failing to make a Federal tax return in violation of the revenue laws of the United States, or evading, attempting to evade, or participating in any way in evading or attempting to evade any Federal tax or payment thereof; knowingly counseling or suggesting to a client or prospective client an illegal plan to evade Federal taxes or payment thereof, or concealing assets of himself or herself, or of another in order to evade Federal taxes or payment thereof. (e) Misappropriation of, or failure properly and promptly to remit funds received from a client for the purpose of payment of taxes or other obligations due the United States. (f) Directly or indirectly attempting to influence, or offering or agreeing to attempt to influence, the official action of any officer or employee of the Bureau by the use of threats, false accusations, duress or coercion, by the offer of any special inducement or promise of advantage or by the bestowing of any gift, favor, or thing of value. (g) Disbarment or suspension from practice as an attorney or certified public accountant by any duly constituted authority of any State, possession, Commonwealth, the District of Columbia, or by any Federal court of record. (h) Disbarment or suspension from practice as an attorney, certified public accountant, or other person admitted to practice before the Internal Revenue Service. (i) Knowingly aiding and abetting another person to practice before the Bureau during a period of suspension, disbarment, or ineligibility of the other person. Maintaining a partnership for the practice of law, accountancy, or other related professional service with a person who is under disbarment from practice before the Bureau or the Intenal Revenue Service is presumed to be a violation of this provision. (j) Contemptuous conduct in connection with practice before the Bureau, including the use of abusive language, making false accusations and statements knowing them to be false, or circulating or publishing malicious or libelous matter. (k) Willful violation of any of the regulations contained in this part. [42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977] § 8.53 Initiation of disciplinary proceedings. (a) Receipt of information. (b) Institution of proceeding. § 8.54 Conferences. (a) General. (b) Resignation or voluntary suspension. § 8.55 Contents of complaint. (a) Charges. (b) Demand for answer. § 8.56 Service of complaint and other papers. (a) Complaint. (b) Service of other papers. (c) Filing of papers. § 8.57 Answer. (a) Filing. (b) Contents. (c) Failure to deny or answer allegations in the complaint. (d) Reply by Director of Practice. § 8.58 Supplemental charges. If it appears that the respondent in his or her answer, falsely and in bad faith, denies a material allegation of fact in the complaint or states that the respondent has no knowledge sufficient to form a belief, when he or she in fact possesses that information, or if it appears that the respondent has knowingly introduced false testimony during proceedings for his or her disbarment or suspension, the Director of Practice may file supplemental charges against the respondent. These supplemental charges may be tried with other charges in the case, provided the respondent is given due notice and is afforded an opportunity to prepare to a defense to them. § 8.59 Proof; variance; amendment of pleadings. In the case of a variance between the allegations in a pleading, the Administrative Law Judge may order or authorize amendment of the pleading to conform to the evidence. The party who would otherwise be prejudiced by the amendment will be given reasonable opportunty to meet the allegation of the pleading as amended, and the Administrative Law Judge shall make findings on an issue presented by the pleadings as so amended. § 8.60 Motions and requests. Motions and requests may be filed with the Director of Practice or with the Administrative Law Judge. § 8.61 Representation. A respondent or proposed respondent may appear in person or be represented by counsel or other representative who need not be enrolled to practice before the Bureau. The Director of Practice may be represented by an Attorney or other employee of the Treasury Department. § 8.62 Administrative Law Judge. (a) Appointment. (b) Responsibilities. (1) Administer oaths and affirmation; (2) Make rulings upon motions and requests; these rulings may not be appealed prior to the close of the hearing except at the discretion of the Administrative Law Judge in extraordinary circumstances; (3) Rule upon offers of proof, receive relevant evidence, and examine witnesses; (4) Take or authorize to the taking of depositions; (5) Determine the time and place of hearing and regulate its course and conduct; (6) Hold or provide for the holding of conferences to settle or simplify the issues by consent of the parties; (7) Receive and consider oral or written arguments on facts or law; (8) Make initial decisions; (9) Adopt rules of procedure and modify them from time to time as occasion requires for the orderly disposition of proceedings; and (10) Perform acts and take measures as necessary to promote the efficient conduct of any proceeding. § 8.63 Hearings. (a) Conduct. (b) Failure to appear. § 8.64 Evidence. (a) Rules of evidence. (b) Depositions. (c) Government documents. (d) Exhibits. (e) Objections. § 8.65 Depositions. Depositions for use at a hearing may, with the written approval of the Administrative Law Judge, be taken by either the Director of Practice or the respondent or their authorized representatives. Depositions may be taken upon oral or written questioning, upon not less than 10 days' written notice to the other party before any officer authorized to administer an oath for general purposes or before an officer or employee of the Bureau authorized to administer an oath pursuant to 27 CFR 70.35. The written notice will state the names of the witnesses and the time and place where the depositions are to be taken. The requirement of 10 days' notice may be waived by the parties in writing, and depositions may then be taken from the persons and at the times and places mutually agreed to by the parties. When a deposition is taken upon written questioning, any cross-examination will be upon written questioning. Copies of the written questioning will be served upon the other party with the notice, and copies of any written cross-interrogation will be mailed or delivered to the opposing party at least 5 days before the date of taking the depositions, unless the parties mutually agree otherwise. A party on whose behalf a deposition is taken must file it with the Administrative Law Judge and serve one copy upon the opposing party. Expenses in the reproduction of depositions will be borne by the party at whose instance the deposition is taken. § 8.66 Transcript. In cases in which the hearing is stenographically reported by a Government contract reporter, copies of the transcript may be obtained from the reporter at rates not to exceed the maximum rates fixed by contract between the Government and the reporter. If the hearing is stenographically reported by a regular employee of the Bureau, a copy of the hearing will be supplied to the respondent either without charge or upon the payment of a reasonable fee. Copies of exhibits introduced at the hearing or at the taking of depositions will be supplied to the parties upon the payment of a reasonable fee. (Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a)) § 8.67 Proposed findings and conclusions. Except in cases when the respondent has failed to answer the complaint or when a party has failed to appear at the hearing, the Administrative Law Judge, prior to making his or her decision, shall afford the parties a reasonable opportunity to submit proposed findings and conclusions and their supporting reasons. § 8.68 Decision of Administrative Law Judge. As soon as practicable after the conclusion of a hearing and the receipt of any proposed findings and conclusions timely submitted by the parties, the Administrative Law Judge shall make the initial decision in the case. The decision will include (a) a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and (b) an order of disbarment, suspension, or reprimand or an order of dismissal of the complaint. The Administrative Law Judge shall file the decision with the Director of Practice and shall transmit a copy to the respondent or the respondent's attorney of record. In the absence of an appeal to the Secretary, or review of the decision upon motion of the Secretary, the decision of the Administrative Law Judge will, without further proceedings, become the decision of the Secretary of the Treasury 30 days from the date of the Administrative Law Judge's decision. § 8.69 Appeal to the Secretary. Within 30 days from the date of the Administrative Law Judge's decision, either party may appeal to the Secretary. The appeal will be filed with the Director of Practice in duplicate and will include exceptions to the decision of the Administrative Law Judge and supporting reasons for those exceptions. If the Director of Practice files the appeal, he or she shall transmit a copy of it to the respondent. Within 30 days after receipt of an appeal or copy thereof, the other party may file a reply brief in duplicate with the Director of Practice. If the Director of Practice files the reply brief, he or she shall transmit a copy of it to the respondent. Upon the filing of an appeal and a reply brief, if any, the Director of Practice shall transmit the entire record to the Secretary. § 8.70 Decision of the Secretary. On appeal from or review of the intial decision of the Administrative Law Judge, the Secretary shall make the agency decision. In making this decision, the Secretary shall review the record or those portions of the records as may be cited by the parties in order to limit the issues. The Director of Prasctice shall transmit a copy of the Secretary's decision to the respondent. § 8.71 Effect of disbarment or suspension. (a) Disbarment. (b) Suspension. (c) Surrender of enrollment card. (d) Notice of disbarment or suspension. § 8.72 Petition for reinstatement. The Director of Practice may entertain a petition for reinstatement from any person disbarred from practice before the Bureau after the expiration of 5 years following disbarment. The director of Practice may not grant reinstatement unless he or she is satisfied that the petitioner is not likely to conduct himself or herself contrary to the regulations in this part, and that granting reinstatement would not be contrary to the public interest.