Whistleblowers & Informants

New IRS Whistleblower Law

As part of the Tax Relief and Health Care Act of 2006 (P.L. No. 109-432, Section 406, 120 Stat. 2911, 2958-60 (2006), the IRS Whistleblower Office came into being, with Stephen Whitlock serving as the initial director. This is a centralized office for processing tips that can either investigate a reported matter itself or assign it to another IRS office. The IRS Whistleblower office will determine what to do with an informant’s tip.

Under the new law, two types of whistleblower IRS awards are possible: (1) Mandatory-Type Claims under Section 7623(b); (2) Discretionary Type Claims (Section 7623(a)).

Section 7623 of the Internal Revenue Code now has been amended to allow for individuals to receive rewards of at least 15% but not more than 30% of the collected proceeds (including penalties, interest, additions to tax, and additional amounts) resulting from one's "substantial contribution" to the taking of IRS action (and related actions) or from a settlement taken by the IRS. Under the law, investigations made of individuals with gross income of over $200,000 for any taxable year or other entities (regardless of income, apparently) will qualify. Provisions drop the award in cases where the contribution by the informant is viewed as benefiting from other disclosures, dropping the maximum recovery to 10%, unless the informant is the original source of the information provided. No written contract is needed. Previously, payments or rewards were discretionary, and absent a written contract, were capped at $2 million dollars. Attorneys’ fees and costs incurred to pursue and recover a reward are specifically eligible for an above-the-line deduction. Awards can be reduced or denied if a tipster is found to have “planned and initiated” the tax strategy that forms the basis of the claim for a reward.

In the second type of award, whistleblowers not able to meet the Section 7623(b) criteria may still seek an award. The awards are discretionary and a maximum award of 15% up to $10 million is possible. An adverse determination cannot be appealed, absent entry into a written contract with the United States Government.

For more information, please see IRS Form 211.

In June, 2012, Director Whitlock updated IRM 25.2.2, by way of interim guidance, to provide new guidance as to Whistleblowers and their practitioners, in particular, as to a process by which application may be made for a reduced rate of withholding to be used by individuals looking to receive a reward under IRC Section 7623(b). Awards paid under the law are includible in gross income and are subject to federal tax reporting and withholding requirements. Section 62(a)(21) of the Code provides an allowable deduction for attorneys fees and costs paid by or on behalf of a whistleblower in connection with an award, limited to the amount of the award includible in gross income. This Code section does not allows the same deduction for awards issued under IRS Section 7623(a). WO-25-0612-03.

In June, 2012, a field directive issued by the IRS suggests that the IRS Whistleblower Office can be expected to utilize 6103(n) service contracts and debriefings of whistleblowers on complex cases and hidden arrangements in the future.

In December, 2012, proposed regulations were issued, providing practitioners with further guidance on administrative procedures to be implemented. Informant, relators, and practitioners will need to monitor these administrative developments when considering the issues that arise with regard to the filing of claims.

Mr. Tufts has over 20 years of legal experience as a tax lawyer that includes assisting with potential whistleblower and informant representations in matters before the IRS. While representation on such matters is extremely sensitive and fraught with challenges, legal representation prior to the bringing forth of such information may be critical. We can assist potential informants in evaluating the processes by which they might bring forth information and know how to help concerned citizens come forward make an appropriate disclosure.

If you have information that you believe may be of interest to the IRS and are interested in obtaining legal advice with respect to the status of the law in this area, please contact us.

Current Law: No Relator Claim Available

Under current law (Section 3729(e) of the False Claims Act), courts lack subject matter jurisdiction to hear a relator's claims that depend entirely upon the establishment of a violation of the Internal Revenue Code. By this "tax bar" provision, "claims, records, or statements" made under the Internal Revenue Code are not actionable under the False Claims Act (which otherwise authorizes private citizens to sue on behalf of the United States to recover treble damages from those who knowingly make false claims for money or property upon the Government or who knowingly submit false statements in support of such claims or to avoid the payment of money or property to the Government). A recent case seems to confirm that this tax bar will apply even when the relator does not seek to recover federal taxes. See United States v. Sakura Global Capital Markets, Inc., BNA Daily Tax Report, No. 150, at K-5 (ISSN 1522-8800)(August 5, 2004)(FCA's tax bar deprives federal district court of subject matter jurisdiction over complaint filed by private citizen, as relator, which alleged that defendant was engaged in "yield burning" that caused municipalities to make false claims to the federal government with respect to the provision of forward supply agreements in connection with the advance refunding of federal tax-exempt municipal bonds).

If you have any questions about the new IRS whistleblower law, or wish to receive consultation on a potential whistleblower claim, please contact us.