Former IRS employee outs whistleblower

The arrest last week of former IRS employee Dennis Lerner stands out for a particular reason to Taxfraudblog.com: The government said he had revealed the identity of an IRS whistleblower.

Such a breach of whistleblower confidentiality by a government employee is unprecedented.  As Special Agent Robert O’Malley of the Office of the Treasury Inspector General for Tax Administration (TIGTA) said, “Any allegation of corruption, self-dealing, or inappropriate disclosure of confidential information is a potential violation of the public trust and could erode the public’s confidence in the American system of tax administration.”

Lerner was charged with breaching conflict of interest laws and illegally divulging privileged IRS information. 

He worked as an international examiner for the New York IRS office from 2010 to 2011, during which time he headed the audit of an international bank that was launched on the basis of whistleblower information regarding nearly $1 billion in unreported income.  Lerner left the IRS in the fall of 2011 and went to work for the same bank he had audited while at the IRS, which the New York Times reported was German Commerzbank.

While working for the bank, Lerner continued to unethically seek out information regarding the IRS investigation, and revealed the identity of the whistleblower to his new employer, violating IRS whistleblower confidentiality, according to the government.  

For more information on whistleblower protection and IRS whistleblower rules, see here. 

IRS awards UBS whistleblower $104 million

The IRS awarded $104 million to UBS whistleblower Bradley Birkenfeld Tuesday.  In 2007 Birkenfeld played a key role in alerting the U.S. government to the ways the Swiss bank, UBS, was encouraging clients to evade taxes in the U.S.  Following Birkenfeld’s tip, UBS agreed to a $780 million settlement with the Department of Justice, and turned over information on some 5,000 Swiss accounts to the IRS. 

Largely as a result of Birkenfeld’s cooperation and the subsequent investigation of several Swiss banks, the IRS launched its first Offshore Voluntary Disclosure Program in 2009.  Over 33,000 Americans have since participated in the program and the IRS has recouped approximately $5 billion in back taxes and penalties.   

Such a substantial whistleblower reward recognizes the value of Birkenfeld’s contributions to the IRS investigation.  ErikaKelton, a whistleblower attorney at Phillips & Cohen LLP, noted the significance of the reward in a Bloomberg article.  Kelton said, “The government acknowledged that without him or someone in his position, offshore evasion at UBS would still likely be going on.” 

Kelton also noted that although the record of IRS whistleblower program has been discouraging for the past few years, Birkenfeld’s reward bodes well for the momentum of the program.  “This is a powerful statement that things are moving and whistleblowers are welcome and they’re open for business,” said Kelton. 

Despite landmark financial penalties in the recent $3 billion GlaxoSmithKline settlement, some maintain that fines are not enough to discourage unethical behavior and malfeasance in corporate conduct. Rather, responsibility must be placed upon individuals in order to effect long-term change.

A recent New York Times article discusses individual criminal prosecution and barring pharmaceutical executives from taking part in Medicaid and Medicare programs as more effective means of reforming the industry. The article states that

"...to institute real change, executives must be prosecuted criminally or barred from participating in the Medicare and Medicaid programs, an action known as 'exclusion.'

This has occurred in only a handful of cases, and rarely in a case involving a major pharmaceutical company. In 2011, four executives of the medical device company Synthes were sentenced to less than a year in prison for conducting clinical trials that were not authorized by the Food and Drug Administration."

The GlaxoSmithKline settlement involves a “corporate integrity agreement,” which places emphasis on the role of individual company leaders in illegal activity and punishes their involvement. Part of this agreement is an “executive financial recoupment” program that calls for the withdrawal of bonuses and other financial incentives when executive and/or their employees are found guilty of participating in unethical or illegal behavior.

Phillips & Cohen attorney Erika Kelton, who represented two key whistleblowers in the Glaxo case, approves of this agreement as a step in the right direction. Kelton says that this “creates pressure and it creates an element of responsibility."

For more information on the role of whistleblowers in the GlaxoSmithKline settlement, please visit http://www.glaxowhistleblowers.com/.

European Commission to beef up regulation on tax evasion

The European Taxation and Customs Union is expanding efforts to crack down on tax evasion and fraud. The plan includes measures to assess the efficacy of regulatory bodies already in place, increase communication within the monitory network, Eurofisc, and implement standardized minimum penalties for tax related infractions, according to a recent memo released by the Commission.

The EU Taxation and Customs Union memo also noted that efforts should encourage tax compliance, though offered no specific strategy to do so.
  
EU member countries would benefit from adopting whistleblower programs that reward and protect whistleblowers, similar to those in the U.S.  The U.S. has four major whistleblower programs: one handled primarily by the Justice Department, and more recent ones with the Internal Revenue Service, the Securities and Exchange Commission and the Commodity Futures Trading Commission. These programs have been critical tools to fight tax fraud in the United States.    

IRS unable to collect payments from Medicaid providers who owe taxes

Despite owing approximately $791 million in unpaid federal taxes, about 7,000 health care providers in New York, Florida and Texas have collected millions of dollars in Medicaid reimbursements in the past two years, according to a report released this morning by the U.S. Government Accountability Office. Because Medicaid reimbursements are channeled through state programs, they are not considered federal money, and therefore cannot be levied (seized or stopped) by the IRS in order to off-set taxes owed to the federal government.

Under the American Recovery and Reinvestment Act, health care providers may apply for Medicaid funding whether or not they owe federal taxes. Critics recommend implementing stricter requirements for obtaining Medicaid funding from the government, while others claim that such restrictions might discourage upstanding providers from seeking participation in the program, according to the Washington Post.

The GAO report recommended the IRS review its policies for collecting taxes and find more efficient ways to obtain owed funds from Medicaid providers.

One of the most successful ways the government recovers money lost to fraud is through whistleblowers, who have helped the U.S. reclaim about $30 billion. However, the IRS has yet to take full advantage of its whistleblower program, according to attorney Erika Kelton, and would do well to explore the potential of that program.

    

IRS needs to do its job and revoke tax-exempt status of lobbying groups

A recent effort in Congress to require more accountability of independent political groups that have non-profit, tax-exempt status recently failed. But the Internal Revenue Service (IRS) has all the tools needed, including a strong whistleblower program, to crack down on the flaunting of tax rules by political lobbying organizations that claim nonprofit, tax-exempt status.

The reason legislative solutions are being proposed is that the IRS has failed to do its job, allowing thinly veiled fronts to raise funds using their tax-exempt status, then use those funds to engage in political lobbying.

In what is apparently the first action of its kind against a political, tax-exempt organization, Phillips & Cohen LLP filed on behalf of Common Cause a whistleblower claim with the IRS against the American Legislative Exchange Council (ALEC) asserting that it is a lobbying organization masquerading as a “public charity.” If the IRS were to enforce its rules, perhaps more whistleblowers would come forward and provide key information to stop such violations. 

Swiss bankers sought tax-evading U.S. clients, government alleges

The U.S. Attorney’s Office in Manhattan has charged three Swiss bankers -- who sought to scoop up former UBS clients -- with conspiring to hide more than $1.2 billion in assets for U.S. clients from the Internal Revenue Service (IRS).

The indictment of the Swiss bankers lays out a simple business plan: The three bankers – Michael Berlinka, Urs Frei and Roger Keller – wanted to capitalize on the IRS investigation of Swiss bank UBS and another large international Swiss bank. To capture the business of those fleeing UBS and the other bank, they allegedly told U.S. clients that their bank wouldn’t disclose its clients’ identities to the U.S. because it had a long tradition of bank secrecy and “was less vulnerable to United States law enforcement pressure because, unlike UBS, the bank did not have offices outside Switzerland,” the indictment says.

The indictment doesn’t identify the bank Berlinka, Frei and Keller worked for, but Reuters reported they worked for Wegelin & Co., one of Switzerland’s oldest private banks.