On January 28, 2013, in a letter to the Internal Revenue Service (IRS) and the U.S. Department of Treasury (Treasury), Senator Charles Grassley (R-IA), co-author of the 2006 updates to Section 7623 of the Internal Revenue Code (IRC), criticized the IRS Whistleblower Program (WBP) and WBP regulations that were presented in the agency’s December 14, 2012 Notice of Proposed Rulemaking (NPRM).  Senator Grassley contrasted the WBP with the success of the Federal False Claims Act (FCA), under which over $30B has been recovered for the U.S. Treasury.  Unlike that program, the Senator argued, the WBP “regulations, as proposed, will hamstring the program by limiting the whistleblower awards and discouraging knowledgeable insiders from coming forward.”

Collected Proceeds

Senator Grassley expressed concern regarding the NPRM definition of “collected proceeds,” finding the agency interpretation too restrictive.  For example, he noted that the regulations do not credit whistleblowers “who provide information that leads to a reduction in [net operating losses (NOLs)] if the reduction in NOLs doesn’t immediately result in taxes collected.”  Further, the Senator criticized the IRS determination that such regulations would be too complicated and costly to administer, especially in light of the relatively small number of whistleblower program awards.

The Senator further expressed concerns that “the definition of ‘collected proceeds’ in the proposed regulations is specifically limited to proceeds raised under Title 26[,]” the domestic portion of the U.S. tax code.  Limiting the scope of the program to Title 26 claims could reduce reporting of pertinent information, “such as that relating to undisclosed foreign bank accounts[, that] may be indispensible in detecting underpayments of tax … .”  Senator Grassley asserted that the language and intent of the law, including “broad use of the word ‘any’ throughout the statute” indicate that awards for non-Title 26 penalties are warranted.

“Planned and Initiated” and “Proceeds Based On”

Senator Grassley also criticized NPRM definitions that reduce whistleblower award determinations and restrict the type of information for which the IRS will grant an award.  Under Section 7623(b)(3), the “Whistleblower Office may reduce an award determination if the whistleblower planned or initiated the actions that led to the tax underpayment” or other actions described in Section 7623(b)(2) of the IRC (emphasis added).  Currently, the IRS defines one who planned or initiated to include anyone who “knew or had reason to know” that there were “tax implications” to the underlying act.  Finding this definition too broad in scope, Senator Grassley advocates reserving award reduction only to “the chief architect or chief wrongdoer[,]” as is the practice under the FCA.

In addition, the IRS will only issue an award where “the Secretary proceeds with an administrative or judicial action (including any related actions) based on the information provided by the individual.”  The NPRM further states:  “[T]he IRS proceeds based on the information provided only when the IRS initiates a new action that it would not have initiated, expands the scope of an ongoing action that it would not have expanded, or continues to pursue an ongoing action that it would not have continued but for the information provided (emphasis added).  Senator Grassley asserts that the use of the word “only” in the implementing regulations “could drastically limit the number of corporate whistleblowers, as the IRS could always claim that the information provided dealt with a topic that was covered in a regularly scheduled IRS audit.”  The Senator determined that “[t]he intent of the law is to reward whistleblowers under section 7623(b)(1) who have substantially assisted the IRS even in situations where the taxpayer is already under audit and even if the issue is already under audit . . . .”

Communication

Senator Grassley also stated that the regulations would do little to improve or expand communication between the IRS and whistleblowers, which he describes as one of the most common complaints about the agency’s whistleblower program.  NPRM regulations provide that administrative proceedings will begin when the Whistleblower Office issues a preliminary award recommendation letter.  The regulations do not state when preliminary awards are to be issued, and the Senator recommends “that the IRS should have a standard practice that such a letter should be sent at a minimum 90 days after taxes have been collected.”  He also suggests that “the IRS should begin administrative proceedings with the whistleblower and open communication once proceeds have been collected” – the IRS claims that such an action would be prohibited by Section 6103.

Senator Grassley advocates for additional clarity concerning when and what type of information the IRS may share with whistleblowers, finding greater assistance from whistleblowers and their advisers critical to the WBP’s success.  He notes that the intent of the law is to ensure that whistleblowers and their advisors “help[] to pull the oars in the examination and investigation.”

Funding and Monitoring

Senator Grassley also admonished the agency for failing to provide the WBP with adequate resources and allowing “whistleblower claims … to languish in the whistleblower office for years.”  He advocates “allocat[ing] its resources to get the biggest bang for its buck[,]” which “includes assigning staff according to where their labor will get its highest rate of return.”  In the Senator’s opinion, “The IRS whistleblower office has proved pound-for-pound to be the best thing going at the IRS in terms of going after tax cheats.”

Finally, the Senator noted that the IRS has failed to implement Government Accountability Office recommendations “to improve the monitoring of the program and the tracking of claims,” and expects that any increased revenues generated from whistleblower information will offset additional monitoring costs.

Implications

Should Treasury and the IRS implement the Senator’s recommendations and broaden the pool of eligible whistleblowers, employers can expect increased government resources—and resources of whistleblower advocates—to be devoted to whistleblower actions and a greater emphasis on investigating tax-related whistleblower claims.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice.…

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice. Steven’s national practice focuses on defending companies in federal and state courts and arbitration against claims of: discrimination, retaliation and harassment, including claims brought by high-level executives; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations (including class, collective and PAGA actions).

Illustrating his versatility, Steven has successfully handled bench and jury trials in multiple jurisdictions (e.g., Illinois, California, Florida and Texas); defended one of the largest Illinois-only class actions in the history of the federal courts in Chicago; and prevailed following his oral arguments before the Seventh Circuit and state appellate courts. Steven brings his litigation experience to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He was also named as One of the Top 10 Impactful Labor & Employment Lawyers in Illinois for 2023 by Business Today. He is a Fellow of the College of Labor and Employment Lawyers. Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Chambers also reports that “He is someone who can navigate the twists and turns of litigation without difficulty. Steven is great with brief-writing, crafting arguments, and making sure the client is always happy.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC, and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

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