The Promise and the Goal

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1 New York s Tax Whistleblower Statute Whistleblowers and Qui Tam Suits: Adventures in Tax Enforcement FTA Annual Conference - June 13, 2011 William J. Comiskey, Esq. Hodgson Russ LLP 1 The Promise and the Goal With this new law, New York has the strongest set of fraud fighting tools in the nation. * New York Attorney General Eric Schneiderman With this strengthened law, New York will... be able to recover millions of dollars stolen by tax cheats. Because New York is a major financial center, we think the state will be a bellwether for the nation in the arena of tax recovery. Without a doubt, the New York law will be used as a cat s paw to illuminate national tax fraud cases that have tentacles in New York. * * Press release issued by then Senator Schneiderman, July 1,

2 Is this new law a big deal? Takes NY to a place the IRS is not willing to go. NY is betting that by empowering and rewarding whistleblowers, increasing civil penalties and expanding liability to reach conspirators (tax practitioners) they will raise revenues and increase voluntary compliance Experience shows that rewarding whistleblowers works and that whistleblowers bring inside information that will help NY expose complex fraud Impact on tax administration - Brings new players to tax enforcement; limits the role of the Tax Department and makes the cases public Monetary thresholds for tax violations New York s false claims act only applies to claims, records or statements made under the tax law if: The defendant s net income or sales equals or exceeds $1,000,000 for any taxable year, and The damages pleaded in the aggregate exceed $350,000. 2

3 False Claims Act Liability State Finance Law 189(1) imposes liability on any person who knowingly - presents or causes to be presented a false or fraudulent claim for payment, - possesses money used, or to be used, by the state and knowingly delivers or causes to be delivered less than all of that money, - makes or uses or causes to be made or used, a false record or statement material to a false or fraudulent claim, or - makes, uses or causes to be made or used, a false record or statement material to an obligation to pay or transmit money to the state or local government, or -conspires to commit any of these violations. Knowingly defined The false claim must be made knowingly: Actual knowledge of the falsity Deliberate ignorance of the truth or falsity of info Reckless disregard of the truth or falsity Intent to defraud is not required but false claims submitted by mistake or through negligence will not support an FCA case 3

4 NY s False Claims Act for Taxes Two types of false claims act actions: Government initiated Qui tam whistleblowers Who can be a qui tam whistleblower Whistleblower awards NY s False Claims Act for Taxes Whistleblower protections Penalties for FCA violations treble damages, per claim penalty and costs (including attorney s fees) Those who knowingly aid or who conspire with someone who violates the act face liability 4

5 Comparisons with the IRS program Similarities with the enhanced IRS program IRC 7623(b) Monetary thresholds to limit to serious tax issues Mandatory awards with similar percentages Awards paid from collected proceeds IRS has some limited judicial review of award decisions Comparisons with the IRS program Differences they are major and fundamental The IRS investigates and pursues the whistleblower cases, not the WB. WB involvement is limited. Awards are available for any disclosed liability Program does not increase taxpayer penalties Confidentiality protections are greater for both the WB and for the taxpayer Limited judicial review of award decisions 5

6 Parallel whistleblower actions? No statutory prohibition bars a whistleblower from proceeding as a whistleblower in both jurisdictions. But there is a danger that separate investigations could compromise both unless the state and the IRS establish a system for coordination and cooperation. Concerns that the IRS would reduce a federal award if a whistleblower initiates a state action. NY s False Claims Act for Taxes The AG gears up. The Taxpayer Protection Bureau. June 8, 2011 AG Conference on the false claims act. Have there been any cases yet? What kind of cases are we likely to see? 6

7 Some final words from the AG Today's announcement [establishing the Taxpayer Protection Unit] is a signal to anyone thinking of ripping off New York taxpayers: We will go after you with every tool we have, and you will pay the price for these crimes. The taxpayers of this state deserve nothing less. AG press release January 27, New York Attorney General Eric Schneiderman "As I said when we unveiled our new Taxpayer Protection Unit, this office will leave no stone unturned in the quest to save money for taxpayers by rooting out waste, fraud, and corruption wherever we find it. AG press release February 8, For more information W. Comiskey and T. Noonan, Calling All Tax Whistleblowers New York Wants You! State Tax Notes, January 31, 2011 at 349, reprinted at: State_Local_Tax/NoonansNotes/CallingAllTaxWhistleblowersNewYorkWantsYou W. Comiskey, New York s New Tax Whistleblower Statute, the NYSSCPA Tax Stringer, February Found at W. Comiskey, New York s False Claim Act, LexisNexis podcast interview on May 16, Found at 7

8 Questions? William J. Comiskey, Esq. HODGSON RUSS LLP

9 2011 FTA Annual Conference Omaha, Nebraska June 13, 2011 New York, New York TAX WHISTLEBLOWERS AND THE NEW YORK FALSE CLAIMS ACT William J. Comiskey, Esq. Hodgson Russ LLP (518) I. A BRIEF HISTORY: PAYING TAX WHISTLEBLOWERS A CONTROVERSIAL IDEA TAKES ROOT. 1867: Congress first grants authority to pay rewards to informants for detecting and bringing to trial and punishment persons guilty of violating the internal revenue laws, or conniving at the same. The tax informant statute followed closely on the heels of the adoption of the original federal false claims act in 1863 to address allegations of fraud, defective weaponry and illegal price-fixing during the Civil War. 1954: The rewards program was codified as section 7623 of the Internal Revenue Code. It was relatively unknown and underutilized. 1998: Senator Harry Reid proposes eliminating the IRS program calling it the Awards for Rats Program. Paying snitches to rat on their associates, employers, relatives and others was, according to Reid, unseemly, distasteful, and just wrong TIGTA report: Notwithstanding Senator Reid s efforts to eliminate it, the federal program, found in I.R.C. 7623, survived. In fact, a 2006 report by the Treasury Inspector General for Tax Administration found that the program significantly contributed to the detection and punishment of tax law violations. The Inspector General found that information received from informants led to better cases for audit that produced more collected dollars per hour than traditional audit selection methods. 2006: Following the TIGTA report, Congress in 2006 enacted I.R.C. 7623(b) which strengthened the IRS program in significant tax cases, defined to include cases where the amount in dispute, including penalties and interest, exceeds $2 million and, if the taxpayer is an individual, the taxpayer s gross income exceeds $200,000 for any taxable year at issue. For cases meeting these financial thresholds, the new laws: Created a Whistleblower Office within the IRS dedicated to handle whistleblower claims. Made awards mandatory and doubled the maximum payout. 1

10 Provided for judicial review of some of the determinations of the Whistleblower Office to present: Not surprisingly, with these new laws, federal whistleblower claims have increased in both number and quality. Between October 2007 and September 2008, the IRS received 476 claims relating to 1246 taxpayers that met the $2 million threshold. Of those, 228 allege an underpayment of more than $10 million and 64 allege an underpayment of more than $100 million. In that same year, among the cases resolved under the prior law were 12 (of 227) that produced collections exceeding $2 million and only 3 that produced collections of more than $10 million. But the new federal program has its critics. Some issues include: Awards under the new program have been slow in coming. The program apparently produced its first award in early April According to press reports, an accountant blew the whistle on the company he worked for and collected $4.5 million as an award on an IRS collection of $20 million. IRS secrecy impedes the work of the whistleblower office and limits opportunities to collaborate with the whistleblower and with the whistleblower s counsel. Some have called for a radical change moving the whistleblower program out of the IRS and expanding the successful federal false claims act, 31 U.S.C to include federal qui tam lawsuits based on tax offenses. Federal law currently expressly forbids false claims actions based on violations of the federal tax laws. 31 U.S.C. 3729(d). 2007: New York adopts a false claims act (FCA) modeled on the federal law and found in Article 13 of the State Finance Law. Like the federal statute, the New York FCA as originally enacted expressly prohibited false claims act cases based on violations of New York tax law. II NEW YORK AMENDS THE FCA TO REMOVE THE TAX BAR In August 2010, with the support of the State Bar Association and the New York State Department of Taxation and Finance, the New York Legislature unanimously passed and Governor Paterson signed legislation amending the New York FCA to affirmatively permit state FCA cases based on violations of New York s tax laws if certain financial thresholds are met. While some states have false claims act statutes that do not bar tax claims, New York was the first state in the nation to expressly authorize these suits taking a step the federal government has declined to take.with this new law, Attorney General Eric Schneiderman (who was the chief proponent of the statute) issued a press release proclaiming that this new law has provided New 2

11 York with the strongest set of fraud fighting tools in the nation tools that provide New York with the capability to be a bellwether for the nation in the area of tax recovery. 1 Monetary thresholds: 2 To ensure that whistleblower suits based on tax violations only involve cases of significant tax fraud against high-end taxpayers, the Legislature set monetary thresholds for tax false claims actions. The false claims act only applies to claims, records or statements made under the tax law if: The defendant s net income or sales equals or exceeds $1,000,000 for any taxable year, and The damages pleaded exceed $350,000. Changing the landscape of state tax administration: The role of the Department of Taxation & Finance: Traditionally, the non-criminal enforcement of the tax laws has been primarily the responsibility of the Department of Taxation & Finance. The tax whistleblower statute brings new players the whistleblower, the Attorney General (and local authorities) and the courts of general jurisdiction -- into tax enforcement in non-criminal cases. However, the Department still has a role. In whistleblower cases the law requires the Attorney General to consult with the Department prior to filing or intervening in a case based on the filing of false claims, records or statements under the tax law. State Finance Law 189(4)(b). Also, when there is no whistleblower, the Department may recommend cases to the Attorney General for investigation and prosecution under the FCA Accessorial liability: While tax preparers face their own potential penalties under the Tax law, the general rule is that only the taxpayer (or, for some taxes, a responsible person affiliated with the taxpayer and under a duty to act) owes the tax. The false claims act expands substantive treble damage liability to anyone -- including tax advisors, preparers, and tax shelter promoters -- who meets the financial thresholds and who knowingly conspires with a taxpayer to file a false return. Given the broad definition of a knowing false claim under the FCA, tax professionals and others who knowingly help taxpayers take unsupportable tax positions are potentially liable under the Act. Confidentiality of taxpayer records. In keeping with the strong rules protecting the confidentiality of tax returns and taxpayer information, tax audits and investigations conducted by the Tax Department are secret. As a general rule, Tax Department enforcement activities do not become public unless a tax obligation is challenged by the taxpayer and decided in an administrative hearing, becomes the subject of a tax warrant (for collection purposes) or results in a criminal prosecution. In sharp contrast, once the seal is lifted on a tax false claim act case, the taxpayer information underlying the action will become public. In addition, the new law suggests that whistleblowers may be able to 1 2 State Finance Law 188(4). 3

12 obtain taxpayer records even in cases where the government declines to participate in the suit. With approval of the attorney general, a false claims act plaintiff is authorized to move to compel the Tax Department to disclose tax records. State Finance Law 189(4)(b). Statute of Limitations: The statute of limitations for a false claims act lawsuit is ten years, measured from the filing of the complaint. State Finance Law 192(1). This statute is substantially longer than both the statutes governing tax audits conducted by the Tax Department and governing the commencement of a criminal proceeding. A Tax Department audit must be concluded and an assessment issued within three years of the filing of a return, see, e.g. Tax Law 683(a) [income taxes], unless a false or fraudulent return is filed with intent to evade tax in which case there is no limitation on the time when the Department may issue an assessment. Tax Law 683(c)(1)(C). The criminal statute of limitation is three years for misdemeanors and five years for most felonies. Criminal Procedure Law 30.10(2)(b) and (c). The role of voluntary disclosure: In 2008, the Tax Law was amended to provide a statutory mechanism the Voluntary Disclosure Program -- for eligible taxpayers to disclose tax offenses and liabilities and avoid penalties and criminal prosecution for those disclosed offenses and liabilities. Since its enactment, the Program has provided relief to thousands of taxpayers and brought in hundreds of millions in new revenue for the State. Unfortunately, whether a taxpayer who enters the voluntary disclosure program will be protected from false claims act liability is not spelled out under the law. Section 1700(3) of the Tax Law provides that upon execution of a voluntary disclosure and compliance agreement, the commissioner shall waive any applicable penalties based on the taxpayer s failure to pay a tax liability or file a return and it further provides that no criminal action or proceeding shall be brought relating to the liability covered by the agreement. This section was enacted prior to the adoption of the tax false claims act and the penalties that the commissioner is required to waive under the section are likely limited to the penalties that he or she can impose under the Tax Law. Sections 191(9)(a)(i) and (ii) of the State Finance Law require dismissal of a qui tam action if the suit is based on allegations or transactions that are the subject of a pending administrative action or if the state has reached a binding agreement with the defendant and such agreement has been approved in writing by the attorney general. While agreements secured through the voluntary disclosure are binding, they are not approved by the attorney general. If the attorney general were to learn of the disclosure during his investigation of a claim, it may be that he could approve of the voluntary disclosure agreement after the fact; otherwise, however this section would not appear to protect voluntary disclosure participants from whistleblower suits. Other points of interest: Non-filing tax evaders: The FCA covers tax violations that are based upon a knowingly false record or statement material to a tax obligation. Such violations will generally involve false returns (or related documents) or false documents submitted by the taxpayer 4

13 (or false statements made by the taxpayer) to the Department during audit or some similar time. What about those who evade by not filing? The FCA imposes liability if the individual knowingly makes, uses or causes to be made or used, a false record or statement material to the individual s tax obligation. 3 By its terms the statute does not require a filed return. Instead, liability can be predicated on any false record or statement material to the tax obligation, even if that false record or statement is not filed with the Department. Generating a false set of books, falsifying records to hide a fact (such as, for example, residency in New York) or even filing a false return in another jurisdiction are some false records that might provide a possible basis for liability under the FCA. In addition, it has been suggested that section 189(d), which imposes FCA liability on anyone who knowingly has possession... of property or money used, or to be used, by the state... and knowingly delivers less than all of that money or property might provide a statutory basis for FCA liability in a non-filing case. Perhaps the strongest case for such liability would be in the context of trust taxes (sales tax and withholding), which the taxpayer collects on behalf of the State, but the words of the statute could also be interpreted to reach other contexts like the knowing underpayment of personal or corporate income tax. Retroactive application: This act shall... apply to claims, records or statements made or used prior to, on or after April 1, Chapter 379 of the laws of 2010, 13. Simultaneous federal and state whistleblower actions. There is nothing in the state false claims act or in the statutes governing the federal whistleblower program (discussed below) which would prohibit a whistleblower who has evidence of taxpayer conduct that violates both federal and state (or local) tax laws, from proceeding as a whistleblower in both jurisdictions. The list of possible defendants in a tax false claims act case could include: - Those obtaining bogus empire zone or other credits, - Those investing in or promoting questionable tax shelters, - Those with hidden offshore accounts, - Those who knowingly misrepresent their status as a resident, - Corporations and businesses that have artificially structured their business solely to evade tax liability, - Companies or individuals with off-the-books or misclassified workers, double sets of books, unreported income, sales tax violations, claimed but non-existent expenses, 3 State Finance Law 189(g). 5

14 - Practitioners who conspire with and aid taxpayers to engage in any violation of the FCA. III. FALSE CLAIMS ACT (FCA) LAWSUITS UNDER NEW YORK LAW. While there are some differences, the state FCA is modeled on the Federal FCA which is found at 31 USC 3729, and which dates to the Civil War. The New York FCA is codified in Article 13 of the State Finance Law A state FCA based on violations of the tax law would need to meet the financial thresholds set out above. Liability: In broad strokes and as relevant to this presentation, State Finance Law 189(1) imposes liability on any person who knowingly presents or causes to be presented to the government a false or fraudulent claim for payment, or has possession of property or money used, or to be used, by the state and knowingly delivers or causes to be delivered less than all of that money or property, or makes or uses or causes to be made or used, a false record or statement material to a false or fraudulent claim, or makes, uses or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the state or local government, or conspires to commit any of these violations. False claim: A false claim is any claim which is, either in whole or part, false or fraudulent. 4 Knowingly defined 5 : Liability attaches only if the false claim is made knowingly which is defined to mean the person: has actual knowledge of the falsity of the information, or acts in deliberate ignorance of the truth or falsity of the information, or acts in reckless disregard of the truth or falsity of the information. Proof of a specific intent to defraud is NOT required, but claims submitted by mistake or through simple negligence are not actionable. Penalties: The penalties are huge and are set out in State Finance Law 189(1) 4 State Finance Law 189(2). 5 State Finance Law 189(3) 6

15 Treble damages: Violators face a civil penalty equal to three times the amount of damages which the government sustains as a result of the act of the defendant. Penalty per false claim, record or statement: In addition, the law provides for a separate penalty for each false claim made or each use of a false record or statement of not less than $6,000 per claim (and not more than $12,000). These per claim penalties can add up quickly in cases involving numerous invoices, billings, false records or similar cases even if the amounts lost as a result of each claim or statement are minor. In addition to these penalties, those found liable for violating the FCA must pay for the costs of bringing the action, including attorney s fees. 6 Who can commence an action under the FCA? State Finance Law 190 provides that false claims actions may be brought by the Attorney General or a local government damaged by a false claim, or any person (the whistleblower) who proceeds as a qui tam plaintiff, acting in the name of the state or local government. The law grants the state Attorney General broad authority to investigate violations of the FCA and to bring FCA actions. It also grants local governments comparable authority with respect to violations that have resulted in damages to the local government. Any person can be a qui tam plaintiff. The qui tam suit is initiated when the plaintiff serves a complaint on the government and files that complaint, under seal, with the Court. The complaint remains under seal for at least 60 days while the Attorney General reviews and investigates its allegations. The state can, and often does, seek extensions of the sealing period. Once the Attorney General s office has completed its review and investigation of the qui tam allegations, it has several options. It can supersede the qui tam complaint by converting the qui tam complaint into a civil enforcement action (and thus being substituted as plaintiff). State Finance Law 190(2)(c)(i). Alternatively, it can intervene in the qui tam action as of right to aid and assist the qui tam plaintiff in which case both the government and the qui tam plaintiff share responsibility for prosecuting the action. State Finance Law 190(2)(c)(i) and 190(5). Finally, it can decline to intervene, in which event the case will be prosecuted by the qui tam plaintiff. 190(2)(f). The extent of the continuing role of the qui tam plaintiff will turn on which option the Attorney General pursues. If the government intervenes, the government may move to dismiss or settle the case or limit the qui tam plaintiff s participation in the case, even over the objections of the qui tam plaintiff. In such circumstances, however, the qui tam plaintiff will have the right to be heard and the Court will determine the issue. 6 State Finance Law 189(3). 7

16 Whistleblower awards: Under both the federal and state statutes, 7 a whistleblower in a successful case is entitled to share in the amounts recovered from the defendant unless that whistleblower has been convicted of criminal conduct arising from his or her role in the violation. The percentage of the whistleblower s share will depend upon several factors: If the whistleblower s complaint is based primarily on disclosures of specific information (other than information originating from the whistleblower) arising from certain public sources, the court may set an appropriate award that is no greater than 10% of the amount recovered, taking into account the significance of the information and the role of the person bring the action. In other cases, where the action is not based primarily on public source information, where the government intervened or superseded in the case, the range of the whistleblower share is between 15 and 25% of the amount collected. In cases where the government declined to intervene or supersede, a successful qui tam plaintiff is entitled to receive between 25 and 30% of the amount recovered. The court determines in each instance the specific percentage taking into account the extent to which the whistleblower substantially contributed to the prosecution of the action. If the whistleblower planned and initiated the violation, the court may, but is not required to, reduce the amount awarded to the whistleblower. If the whistleblower has been criminally convicted in connection with the conduct disclosed, the whistleblower will not be permitted to receive an award. The court may also award whistleblowers (and government plaintiffs) an amount for reasonable expenses that have been necessarily incurred, plus attorneys fees and costs. Whistleblower protections: The FCA prohibits retaliatory actions against a whistleblower by employers or prospective employers because of lawful actions of the whistleblower taken in furtherance of an action under the false claims law. A whistleblower facing such retaliation is entitled to seek injunctive relief, double pay plus interest, compensation for special damages sustained and litigation costs and attorneys fees. State Finance Law 191(1). Under New York law, a protected lawful act includes taking documents, correspondence or other information even though such taking may violate a contract, employment term, or duty owed to the employer or contractor if the possession and transmission of those items are for the sole purpose of stopping an FCA violation. State Finance Law 191(2) USC 3730(d); State Finance Law 190(6) 8

17 IV. THE IRS WHISTLEBLOWER PROGRAM: a. IRC 7623(a) the old program still governs claims below $2 million - Historically underused and ineffective. It was characterized by [p]altry bounties, stingy administrators, inadequate protection for whistleblowers, and unreceptive courts. 8 - IRS had virtually unchecked discretion to decide whether to pay and how much to pay - Authorized awards ranged from 1% (if the whistleblower s information caused an investigation but was unrelated to the recovery) to 15% (if the information led directly to the recovery) of the amounts recovered subject to an absolute cap of $10 million. - Dispersed decision making and few standardized procedures - No appeal of IRS decisions b. IRC 7623(b) the 2006 enhanced program (for claims over $2 million and individual taxpayers with gross income exceeding $200,000) - Increased the maximum potential award to 30% of the amount recovered and established a minimum award of 15% if the award is based on original information and 10% if the claim is based principally on publicly disclosed information or possibly less if the whistleblower planned or initiated the events leading to the tax underpayment. The specific percentage turns on the extent to which the whistleblower s information substantially contributed to the recovery. A whistleblower convicted for his or her role is barred from collecting. - Awards are mandatory if the whistleblower s information causes the IRS to investigate the taxpayer, but the decision whether to initiate an investigation is up to the IRS and the taxpayer will not know why the IRS may decline to investigate. - Removed the $10 million cap. - Created a central Whistleblower office to administer the program. - Provided for judicial review of certain issues related to whistleblower awards. 8 D. Ventry, Whistleblowers and Qui Tam for Tax, 61 Tax Law, 357, (Winter 2008). 9

18 c. The IRS program is fundamentally different from a false claims act whistleblower program. Whistleblower participation in the investigation: The whistleblower s involvement in the IRS program is more limited than whistleblowers under the false claims act. Once the claim is filed with the Whistleblower s Office, the whistleblower s role is, in the majority of cases, generally over. Although there are exceptions, IRS secrecy rules generally preclude sharing information with the whistleblower. In a false claims action, in contrast, the whistleblower may be in a partnership with the government working as a full participating party to the litigation, whether or not the government intervenes. In some false claims cases, the whistleblower will work with government investigators to help the government build its case. Confidentiality of the whistleblower s identity: The identity and confidentiality of the whistleblower is more strongly protected in the IRS program. They promise to protect confidentiality to the fullest extent permitted by law and, if there is one thing the IRS is really good at it is protecting its secrets. In a false claims case, in contrast, the whistleblower s identity should be protected while the Attorney General and Tax Department investigates the case but once the case becomes public it is far more likely that the identity of the whistleblower will be revealed, especially if the case is litigated. Negligence and mistakes: Whistleblower claims can be made under the IRS program for any tax underpayment, even if the underpayment is the result of a mistake. In contrast, the false claims act is only available in cases where the violative conduct has been committed knowingly. Court involvement: FCA actions are before the courts as soon as they are filed. The FCA whistleblower will have an opportunity to be heard before the government can settle or dismiss the case and the whistleblower will have the opportunity to pursue the case whether or not the government participates in the action. In addition, while the Tax Department consults with the Attorney General with respect to the case, the Department does not have control of the case. In contrast, under the IRS program, the matter is handled administratively by the IRS and is subject to all of the procedures and due process provisions that govern any IRS audit or investigation. While the new IRS rules provide for limited judicial review of certain IRS decisions with respect to whistleblower cases, that review leaves still many decisions to the discretion of the IRS. For more information and commentary on New York s tax whistleblower provisions: J. Wetxler, New York s False Claims Act Good or Bad Tax Administration, Tax Analysts State Tax Notes, April 18, 2011 at

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