IRS Whistleblower Program...The Need of a "Taint Review"

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Prior to working on any Whistleblower Claim, the IRS will conduct what is known as a “taint review.”  This review ensures good behavior by our government, and that in this case, it will ensure that the IRS is not encouraging Whistleblowers to provide information/documentation that would not otherwise be available to the IRS.  In fact, there is the possibility that the Court itself would throw out information/documents that should not have been available to the IRS or perhaps, even worse, throw out the entire action (i.e. audit) by the IRS if it is using tainted information from a whistleblower.

What is a Taint Review?

According to the Internal Revenue Manual (IRS’ operations manual for its employees) Section 25.2.1.4.3, the taint review team (IRS Subject Matter Expert, IRS Whistleblower Office and IRS Chief Counsel) will review the Claim and any Exhibits submitted by a whistleblower and his/her legal team to determine if it includes tainted material that would jeopardize the IRS actions (i.e. adjustments to the Taxpayer’s tax liability or to collecting taxes).

Specifically, the taint team will evaluate whether the IRS can forward all the information and documentation provided by the Whistleblower to its operating division.  This taint team will evaluate whether any information/documentation will be withheld due to privilege, or other reason.

What is tainted information?

Tainted Information may include:

  1. Information illegally obtained by the whistleblower;

  2. privileged information; (i.e. attorney-client privilege);

  3. etc.

What is privileged information?

  1. Attorney-Client Privileged information: Applies to information from legal advice sought from a legal professional in their capacity and applies to communication related to the legal advice.  The privilege belongs to the client and prohibits disclosure unless waived by the client.

  2. Work Product Doctrine Privileged Information: Protects information prepared in anticipation of litigation or for trial.  The materials can be prepared by an attorney or a non-attorney, so long as they are prepared in anticipation of litigation.

  3. Spousal Privileged Information: Protects confidential communication made between spouses while married.  Privilege survives the dissolution of the marriage. Applies to communication that occurred between spouses while married and prevents a spouse from testifying based on that communication whether the marriage still exists.

  4. Tax Practitioner Privileged Information: Internal Revenue Code Section 7525 extends attorney-client privilege between a client and a federally authorized tax practitioner, if the communication would have been privileged between the client and an attorney.  Only applies to non-criminal tax matters.  Does not apply to any promotion of a tax shelter.

Other Considerations

Current Employees:

For current employees of a Taxpayer, IRS attempts to ensure that the information, if used by the IRS, does not create a 4th Amendment argument for the Taxpayer (i.e., unreasonable search and seizure of the Taxpayer’s property). 

One bite rule: If the whistleblower is a current employee of a taxpayer, the IRS should be a passive recipient of the whistleblower’s information, meaning that at the initial meeting between the IRS and the whistleblower, the IRS should receive all information from the whistleblower, because there is seldom a following meeting with the whistleblower.

Stolen information:

The IRS follows current caselaw precedent and will accept stolen information from the whistleblower so long as the government is a passive recipient of the information/documentation.   The IRS may be overly cautious with respect to accepting information that the whistleblower obtained from which he/she did not have access as opposed to information that he/she had access to in the normal course of business (i.e. emails, memos, etc.).

Conclusion:

In filing a whistleblower claim with the IRS under I.R.C.§ 7623, a whistleblower can take steps to ensure that his claim is not weakened or eliminated from consideration.  The determination of whether the IRS will exclude all or some of the whistleblower’s information occurs during the “Taint Review”.  As noted above the IRS Taint Team will consider excluding information or documents which that may jeopardize the results of an IRS examination.  Having experienced legal counsel can assist the whistleblower in framing potentially excludable information as includable which may be the difference between a successful whistleblower claim and a rejection.  In addition, perhaps as many as 50% of all whistleblowers whose claims are to be forwarded to the operating division for evaluation, are “debriefed” by a taint team.  An experienced attorney in this debriefing may successfully explain why information and/or documents are not tainted.

The attorneys at Tax Whistleblower Law Firm have extensive experience crafting a whistleblower claim to minimize the IRS’ rejection of the claim due to taint. Tax Whistleblower Law Firm also has experience in representing whistleblowers in taint interviews and overcoming the taint review hurdles which may arise. CONTACT US for an evaluation of your claim to determine if your claim may be considered tainted by the IRS Taint Team.

Author, SHINE LIN strives to present a balanced yet focused claim which allows the IRS to concentrate on the key facts, legal issues, law and legal analysis so that the IRS may successfully pursue the alleged wrongdoers.