Articles Posted in IRS Whistleblower Program (for Tax Whistleblowers)

Individuals who have knowledge of the fraudulent write-off of bogus business losses are in a position to reap the rewards from such illegal conduct should they report it under the IRS Whistleblower Program. If a business writes off bogus business losses from a transaction and claims a tax refund, for example, such a transaction could constitute fraud and thereby expose the company to a whistleblower action by an insider with knowledge of such fraud. An apparent example of this was reported this week in an article in Information Week describing a federal investigation into the computer services firm, Oracle. According to the article, federal investigators are looking into whether Oracle improperly wrote off a quarter of a billion dollars in losses in the calendar year 2003 for the express purpose of obtaining a massive tax refund. Allegedly, Oracle claimed that it lost $223 million on stock transactions in the calendar year 2003 and applied for a $78 million tax refund. The government’s contention seems to be that the tax write-offs were completely fraudulent because no business losses actually incurred. Allegedly, the stock losses were fraudulently manufactured to support the refund application. If the IRS is correct, Oracle might have to repay to the government $78 million plus penalties and interest on the money.

What the article did not say is whether the source of the information about Oracle came from a whistleblower. The stock transactions at issue allegedly occurred in 2003. There does not appear to be a statute of limitations issue. If a whistleblower is the source of the information that started the government’s investigation, under the New IRS Whistleblower Program, the informant could receive up to 30% of the $78 million tax refund plus the same percentage of collected penalties and interest. In short, if the government was unaware of the scheme and learned of the scheme through an informant/whistleblower, then, in that event, if the IRS is successful in its efforts to get the refund back, the whistleblower would then be entitled to a reward because otherwise the government could not have recovered money.

While, of course, we do not know whether the allegations against Oracle are true and correct, what is noteworthy is that the Internal Revenue Service is clearly interested in investigating cases where businesses have written off large business losses which may be inappropriate. In this case, the appearance is that the write-off was inappropriate because the stock transactions at issue appear to have been manufactured to create a tax loss. Again, whether the allegations are true or not with respect to Oracle, the fact remains that the Internal Revenue Service will investigate such cases and obviously would appreciate assistance from insiders and whistleblowers who are willing to come forward to report possible violations of the tax code.

The new IRS Whistleblower Rewards Program–and observations by one of the whistleblower lawyer blog attorneys–were featured in an October 15, 2007 article by Nicholas Rummell in Financial Week. Financial Week is a publication geared toward the CFO and other professionals in finance and accounting, with coverage of economics and business markets, regulatory and legislative actions, financing, banking, insurance, real estate, cash management, investment management, benefits and retirement finance, investor relations, accounting and technology.

This article discusses the fast start of the new IRS Whistleblower Program authorized by Congress in December 2007, which our whistleblower attorneys have written about extensively. I had the pleasure of speaking at length with writer Nicolas Rummell about the new IRS program, which is most promising. (The Financial Week article is at http://www.financialweek.com/apps/pbcs.dll/article?AID=/20071015/REG/71012026.)

Of particular interest was how those in the financial services industry, including hedge funds, have utilized the new IRS Whistleblower Program.

It is estimated that the annual tax gap between those who owe money to the government as taxes and those who actually pay them (i.e. the annual underpayment of taxes) is $345 billion. Under the new IRS Whistleblower provisions, an insider with information about tax fraud can claim a minimum of 15% up to a maximum of 30% of back taxes collected by the government based on information received from the whistleblower. What this means is that each year if, in fact, the annual tax gap is accurately reported at $345 billion, whistleblowers nationwide could potentially receive 15 to 30 percent of this amount plus interest and penalties should they report tax cheats to the government.

The typical case we see here in our practice is where an insider at a business becomes concerned about blatant tax fraud. Examples include executives using corporate funds for their personal use, fraudulent business expenses, diversion of income to off-shore accounts, etc. The forms of fraud in the tax context are myriad and sometimes complex but the whistleblowers that have contacted our firm all are genuinely interested in making sure that tax cheats have to pay their tax bills. Indeed, what is unfair about this?

Given the huge amount of the annual tax gap, Congress hoped to increase whistleblower activity by enacting the new IRS Whistleblower provisions which provide increased incentives for insiders to come forward. Not only is the insider now entitled to a minimum of 15% of all back taxes collected, they also are eligible for up to 30% of such back taxes collected including 30% of interest and penalties collected on the taxes owed. Moreover, as we have previously blogged about, where overt fraud and income tax evasion is involved, there is no civil statute of limitations which prohibits such claims.

Tomorrow in Washington, this whistleblowerlawyerblog author is looking forward to participating in a panel discussion with the Director of the new IRS Whistleblower Office, Stephen Whitlock, to explain how the new IRS Whistleblower Rewards Program works.

We will speak at the Taxpayers Against Fraud Annual Conference in Washington at 6 p.m. on September 9. Leading the panel discussion will be Paul Scott. I am also looking forward to the presentations by Erika Kelton and Professor Dennis Ventry of American University’s Washington College of Law.

I have enjoyed speaking with Director Stephen Whitlock before about the progress of this exciting new program that rewards whistleblowers for bringing forth information about tax fraud, tax evasion, and underpayments of taxes. Our firm has been continually impressed by the professionalism of the IRS agents we have worked with in representing clients who have presented whistleblower claims to the IRS.

Question about the new IRS Whistleblower Rewards Program: if you go to the Internal Revenue Service’s website, the IRS notifies persons that, if they have evidence of suspected tax violations, they should use a Form 3949 and send it to an Internal Revenue Service Office in Fresno, California. While this blog is not legal advice, we have not seen a basis for individuals seeking a reward under the new IRS Whistleblower Program for blowing the whistle to utilize this form. The reason is because this form is not necessarily connected to the new IRS Whistleblower Program which came into being in December of 2006.

The Information Referral Form 3949A utilized by the IRS is a form that generically describes suspected tax fraud, but does not include within its provisions an application for a reward under the new IRS Whistleblower Program. The same is true for the old Form 211. While the IRS Form 211 arguably still applies to claims less that $2 million, because the new program pertains specifically to those seeking rewards concerning information for the payment of back taxes in excess of $2 million, we have not seen requirements that individuals applying for rewards use the Form 3949-A or send it blindly to the IRS in Fresno. While the information contained within the Form 3949A can be included in an application for a reward under the new Whistleblower program, simply sending in the Form 3949A may not be the equivalent of applying for the reward under the new Whistleblower Program as described in 26 U.S.C. § 7623.

Regulations on the new Whistleblower Program this fall may shed light on these questions. And again, since the facts vary from case to case and a blog cannot provide legal advice, please contact an attorney with experience with the IRS Whistleblower Program for guidance–either our firm or someone else with this experience.