Azure Global

Thursday, 6 December 2012

Tax avoidance targeted by European Union

The European Commission has announced a series of proposals designed to tackle the "scandalous loss of much-needed revenue" EU members suffer through tax evasion and tax avoidance.

These include a tougher stance on tax havens and ways to close loopholes.

Some big companies take advantage of these loopholes to avoid paying millions of euros in tax.

The Commission said around 1tn euros ($1.3tn; £800bn) is lost every year in the EU by tax avoidance and evasion.

"While member states must toughen national measures against tax evasion, unilateral solutions alone won't work," said Commissioner for Taxation Algirdas Semeta.

"In a single market, within a globalised economy, national mismatches and loopholes become the play-things of those that seek to escape taxation.

"A strong and cohesive EU stance against tax evaders, and those that facilitate them, is therefore essential."

'Harmful competition'

The package of measures includes two main recommendations. The first "encourages" member states to identify tax havens and place them on "national blacklists". Measures to persuade these havens to apply EU law are also laid out.

The second suggests ways for member states to address the kinds of legal technicalities and loopholes companies use to pay less tax.

Members should also adopt a common General Anti-Abuse Rule, whereby they can ignore artificial tax avoidance schemes and tax the underlying sum of money, the Commission said.

It also called for a clampdown on what it called "harmful tax competition", where member states compete with each other to provide the most benign tax environment. If necessary, the Commission said it would come up with the "legislative proposals for action".

A number of major global companies, including Amazon, Starbucks and Google, have come under fire in recent weeks for paying very little tax relative to their profits in the UK.

The UK Treasury is also clamping down on tax evasion and avoidance, both by companies and individuals, in an effort to raise much needed-revenue. This includes giving greater resources to the Inland Revenue to pursue those paying less tax than they should.

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Article source :http://www.bbc.co.uk

Starbucks agrees to pay more corporation tax

Coffee chain Starbucks has agreed to pay more UK corporation tax, after a public outcry over how little it pays Kris Engskov, managing director of Starbucks UK, announced that the company would pay "a significant amount of tax during 2013 and 2014, regardless of whether the company is profitable".One tax expert described the move as "unprecedented".HM Revenue and Customs reacted by saying that corporation tax "is not a voluntary tax".

"The public expects businesses to pay their fair share," the tax authorites added, "and HMRC will challenge, through the courts if necessary, any structures or tax payments that do not comply with the UK tax law."But Amazon and Google, also under fire for paying little UK tax, held firm.The extra tax could amount to £20m over the next two years, Mr Engskov said.

Bill Dodwell, head of tax policy at the accountants Deloitte, told the BBC that he suspected the figure was a "sensible number taking account of the scale of the business and their history of past losses".

"This is an unprecedented move for a company to announce this sort of change," he said.

'Joke'

Starbucks' announcement comes after much public anger over the revelation of how little corporation tax it pays in the UK, with some people saying they would boycott its outlets.The company has paid just £8.6m in corporation tax in its 14 years of trading in the UK, and nothing in the last three years, despite UK sales of nearly £400m in 2011.Starbucks has reported a taxable profit only once in its 15 years of operating in the UK, often reporting losses.

"It is extraordinary," Stephen Williams, Treasury spokesman for the Liberal Democrats, told the BBC. "People have been joking that some of these multinationals seem to think that paying tax is voluntary. Well Starbucks have just confirmed the joke really.

"Tax is something that is a legal obligation that you should pay according to the tax rules of a particular country. It's not a charitable donation in order to gain sort of brand value. But that seems to be what Starbucks are doing.Conservative MP Richard Bacon, who is a member of the Public Accounts Committee, expressed surprise at the move."They have recognised the public outrage at the fact that a company as large as Starbucks would... not be paying any corporation tax.

"They have realised that it is a PR problem and it is a PR response. It is nice for the exchequer to have a bit more money, but it is not a long-term solution to the problem that we face."Starbucks admitted that the degree of hostility and emotion surrounding the tax issue had "taken us a bit by surprise" and that the move was an attempt to rebuild trust with its customers.

"Since we started doing business here, we have always organised our tax affairs according to the letter of the law," said Mr Engskov."[But] with the backdrop of these difficult times, in the area of tax, our customers clearly expect us to do more," he said.

Mr Engskov added that the company had found it difficult to make profits in the UK, which has "the most competitive espresso market in the world", despite "two million customers visiting us each week in hundreds of stores across the UK".The extra tax payments will be funded by not claiming "tax deductions for royalties or payments related to our intercompany charges", Mr Engskov said. Mr Dodwell said he thought the coffee chain would not claim some of the deductions they may otherwise have been allowed to claim.

"We don't know the details - that will be between the company and HM Revenue and Customs," he said.

Solutions for retaining assets after a client dies

BY MATTHEW HALLORAN

Research tells us that 90 percent of heirs will reject their parents' financial advisors, and 70 percent of widows will change advisors after their husband's death. Can you afford that level of loss

I thought through my coaching clients for the last 10 years and realized that I have heard this excuse too many times.

I remember talking to a client and he was very upset. He had lost one of his largest clients. I asked him what happened and he said that the husband died and the spouse transferred her money to another advisor, saying, "You only talked to my husband when we came for our reviews."

How often do you lose the assets after your clients die? For those of you who are being honest with yourself, this happens a lot and you know it. But this article is supposed offer solutions, not a mean coach opening up an old wound. So what do you do?

You learn how to talk to them or hire a professional. There are people out there who are trained in these issues, and one of my clients is a pro. In fact, she is one of the chosen few who can handle really tough family issues - addiction, lifestyle issues, and entitlement issues. I have learned a lot about her technique over the time we have worked together and I wanted to share some of her insights. I would refer financial advisors to her at a moment's notice.

I asked her to give the top 10 things she could share without making all the advisors that read this guilty of practicing psychology without a license. Here is what she said.

1. Define your client. If you want to retain assets over the long-term, then your relationship must extend to present and future stakeholders.

2. Serve your client. Check your behaviors. Whom do they suggest your client is? With whom do you speak the most? Whom do you contact with questions or recommendations? Saying the couple or the family is your client is not enough. Your actions must reflect the same.

If your attention is skewed, you are missing the opportunity to develop a relationship with the other member(s) of the couple or family, and they will likely move the assets when the person they view as your client dies.

3. Know your client. If you are working with a couple or a family, you must get to know each person individually. Know their priorities, preferences, dreams and fears. Your job is not to reconcile differences. Your job is to know them and develop a plan comprehensive enough to honor them.

4. Understand your client. Hearing is not enough. You must understand. To understand, you must listen -- actively. Active listening means listening to understand, not to respond. Park your thoughts. You can come back to them. Listening in order to understand is one of the greatest services you can offer your clients.

5. Put purpose first. Your technical expertise makes you shine at offering solutions. But this expertise can also create blinders. You may be too quick to hear objectives and match them with methods. This challenge is exacerbated by clients' expectations that you want to hear their goals, and their lack of understanding of what their true goals are.

The purpose is the meaning, significance, or "why" behind the client's goal. Once their purpose is known, the true goals can be determined. What to do and how to do it will then follow.

6. Embrace resistance. Do you have clients who have yet to implement their plan in some way? Indeed, we've all been there. Investigate the disconnect behind the procrastination. It could be a warning sign that an important part of their purpose has not been met, or that they have lost sight of how the action steps promote their purpose.

7. Go wide. Your client is more than their financial assets. Each has social, intellectual and spiritual capital, as well. Capture and utilize those resources. Most Baby Boomers and their parents are more concerned with leaving an emotional inheritance than a financial one. Help them plan for these priceless assets, too.

8. Address the elephants. Addiction. Entitlement issues. Resentments. Unprepared heirs. As their trusted advisor, you know the issues that linger and drain life from your clients. Money won't solve these. Indeed, it often makes them worse. Listen as clients speak about the issues. Engage them in exploring options. Do not ignore the elephants merely because they are outside your expertise.

9. Do no harm. Know the limits of your expertise. Know when to refer or bring in an expert. Connect them with resources and encourage them to press on to address known challenges.

10. Collaborate. Embrace the wisdom and expertise of others. Communicate openly with your clients' other advisors. Exchange ideas and seek to reach consensus before sharing recommendations with your client. Meet jointly with your client and their advisors. The return on this investment will be increased clarity of communication, greater efficiency, and client appreciation for a streamlined process.

Article source :http://www.accountingtoday.com

PFP News

Washington, D.C. -- The board of directors of the CFP Board of Standards announced the resignations of its chairman, Alan Goldfarb, and two members of the Disciplinary and Ethics Commission.

After the CFP Board became aware of allegations that members of the board and other volunteers may have violated provisions of the CFP Board's Standards of Professional Conduct, the board of directors created a special committee, which retained outside counsel to investigate. The investigation found sufficient merit in the allegations against Goldfarb and the two members of the DEC to refer them for further proceedings under the CFP Board's disciplinary rules.

When presented with the committee's findings, Goldfarb and the two DEC members decided to resign from their posts. On October 30, Goldfarb addressed the situation in an open letter: "I am certain that this was a misunderstanding, and I welcome the opportunity to engage in good faith the CFP Board's enforcement process."

Goldfarb added: "I believe that under the circumstances, it is best for the organization that I resign pending the outcome of the process as both chair and a member of the board of directors, effective immediately."

2012 chair-elect Nancy Kistner has since been elected to fill the remainder of Goldfarb's term.

AICPA TO PUBLISH CONSUMER FINANCIAL EDUCATION BOOK

New York -- The American Institute of CPAs plans to publish its first book for the consumer market early next year.

The book, entitled Save Wisely, Spend Happily, combines the personal financial planning insights of 125 CPAs. It is scheduled to be published on January 3.

The book complements the AICPA's 360 Degrees of Financial Literacy volunteer effort. Institute members can begin purchasing the book now through CPA2Biz. Discounts are available for bulk orders. All proceeds from the sale of the book will go to support the CPA profession's financial literacy efforts.

The Spirit of Accounting: Using Private Company GAAP to Serve Statement Users' Needs

Let's now consider whether the U.S. needs two sets of GAAP for public and private companies. If so, we face many questions as to who should establish those standards and what they should look like.

I'm convinced that the most vocal arguments in favor of private company GAAP are primarily gut-level and emotional. However, it is also true that this issue has been debated and that steps have been taken to consider how to implement the basic idea.

As you know, NASBA has been involved with this effort, and former NASBA chairman Billy Atkinson has been appointed chair of the PCC. Another former chair, Diane Rubin, was also appointed after being nominated by your association. I hope that Billy, Diane and NASBA can lead the council to bring long-needed reforms to GAAP.

I encourage you to make the most of your involvement, because it opens up an avenue to do more good than you may have imagined. The risk is that not enough would be done to attack the real problems created by grossly deficient accounting standards.

A NEW PARADIGM

As I understand it, the council's first effort will aim to identify as many places as possible in GAAP that could be changed to be more useful in the private company setting. In my opinion, there is no better place to start. I urge the council to approach this effort from a perspective different from what you may now hold.

Philosophers use the word "paradigm" to describe an accepted worldview. Profound changes usually follow when we go through a "paradigm shift." For an example, just think how life has changed as a result of the iPhone and other means for mobile connectivity.

Specifically, I call on the PCC to stun the accounting world by adopting a users-first paradigm that would lead to assessing the usefulness of today's GAAP for meeting the needs of those who use private company statements, not those who prepare or audit them.

By analogy, it's well established that good things happen when managers focus on their customers' needs, instead of their own concerns. This shift to the consumer's point of view is at the heart of the Total Quality Management revolution that drastically changed the business world some 25 years ago. It can also be at the heart of a new dawn of relevant and useful financial statements.

THE USERS' NEEDS

So, what would that mean for private company reporting?

For one, this area is ripe for a user-oriented paradigm because there is much less distance, and a longstanding personal relationship, between private company statement issuers and users. As a result, effective financial reporting is more than likely to occur in a setting in which trust has already been established. This trust should not be jeopardized by reports that fail to tell the truth, the whole truth, and nothing but the truth.

To build on that point, I suggest that private company financial reports have usefulness in three primary settings.

First, these statements should help actual and potential lenders assess a company's creditworthiness. To do that, users must be provided with clear descriptions of an entity's cash flow. The reports must also reliably describe assets that have been or might be pledged as collateral, and they must usefully describe all existing obligations so the users can fully understand the present debt risk. Therefore, reports should use the direct method to describe operating cash flow and mark all assets and liabilities to market. All off-balance-sheet financing must be eliminated.

Second, private company statements should help owners and potential buyers assess the firm's value so they can conduct informed negotiations for its sale or acquisition. Again, direct-method cash flow information is important. Off-balance-sheet financing must be eliminated, and market-based information about the assets and liabilities is absolutely essential.

Finally, these financial statements will surely prove useful for managers.

Of course, but unfortunately, traditional GAAP statements do not serve these functions. Thus, any effort to merely tweak existing standards won't be good enough. For certain, any efforts to curtail the amount of reported information would be going in exactly the wrong direction.

To put it another way, those who advocated for private company GAAP are looking to reduce preparation costs. To be very clear, the search must be for the most useful statements, not the least expensive statements.

WHAT NEEDS CHANGING?

Here is the main implication for the council and the Financial Accounting Standards Board - and all accountants, for that matter. I am convinced that an objective and thorough evaluation of today's GAAP will reveal that virtually all standards need substantive reform. Superficial modifications will not be good enough. Instead, financial statements must be completely useful.

(I actually drafted the preceding paragraph several weeks ago and was especially pleased to read Billy's comments at the American Institute of CPAs' Council meeting held in October, in which he declared with these words his intent to evaluate all of GAAP: "If we do have fixes, we should first evaluate the fixes from the standpoint of all users, not just private company users.")

If the council does proceed along these lines, they need to ask new questions, such as, "Why are we still doing today what came into common practice before computers existed or when Queen Victoria had just ascended to her throne? Why do managers want to reduce the cost to prepare their statements if cutting those corners will increase their capital costs and diminish their company's perceived value?" My favorite is, "Why are impaired market values below book value considered to be reliable, but those above book value are not?"

These bold questions should lead to bold answers.

AREAS FOR IMPROVEMENT

To hammer home this point, I'm going to list a few places where accounting practices could be improved: the cash balance, cash flow statements, accounts receivable and credit sales, inventory and cost of goods sold, investments in equity and debt securities, property and duh-preciation, intangible assets, financial instruments, consolidated financial statements, off-balance-sheet financing, income tax expense and deferred taxes, accounts payable, long-term debt, convertible debt, defined-benefit pensions, stock-based compensation, shareholders' equity, preferred stock, balance sheet classifications, income measurement and presentation, comprehensive income, and quarterly reporting. Once these are exhausted, I am sure we can find others to fix, like earnings per share.

In other words, GAAP is seriously broken because it has never been developed to address users' needs. Because it is seriously inadequate, it needs to be seriously reformed.

The council has been empowered to kickstart that reform by identifying ways to make private companies' financial statements useful. And, then, as Billy confirmed, it's a natural extension to question public company GAAP as well.

Indeed, I hope that FASB and the PCC can collaborate to produce a new GAAP that can be applied by all companies, private and public.

AN UNEXPECTED TURN

Putting users first differs from the agenda pushed by those who want an oversimplified GAAP that would be cheap to comply with but fail to provide useful information. If the guiding objective is to help capital markets become more efficient, then users should have a leading role in the standard-setting process for identifying and resolving the issues. Alas, they have been virtually neglected so far.

How do we know that supporters of a separate GAAP weren't putting users first? Evidence is provided by three things.

First is the composition of the Blue Ribbon Panel. More than 70 percent of the panel's 18 members were CPAs, chief financial officers, and other managers. There were only two users, along with two seats for a professor and a regulator. This mix does not reflect a paradigm that puts users' needs first.

Second is the backgrounds of the respondents to requests for comments. Bruce Pounder reported in CFO Magazine that 103 responses to the panel's request came from CPA practitioners and state societies, while only four came from users and business owners. The responses to a later request were terribly skewed toward CPAs because thousands of them clicked on a link that authorized the AICPA to send a prefabricated letter to the Financial Accounting Foundation. (While this gambit was legal, Bahnson and I described it as ineffective and illegitimate.)

Wednesday, 5 December 2012

FASB chair Leslie Seidman lays out a schedule for handling the remaining projects on the convergence agenda

In an exclusive interview with Accounting Today, Leslie Seidman, chair of the Financial Accounting Standards Board, detailed the current status and likely future timeline for the four main remaining parts of the standard-setting board's convergence agenda with the International Accounting Standards Board.

Three of the four items -- on revenue recognition, accounting for financial instruments, and leasing -- were part of the original convergence agenda, while the fourth, on insurance, was added later. As the complexity of the issues involved and the potential effects on stakeholders have become clearer, the projects have been delayed several times, but Seidman laid out a detailed timeline that would see them finished largely by the end of 2013.

Start business

REVENUE RECOGNITION

Seidman considers revenue recognition particularly important, noting, "It's important to have global comparability for the top line of every company in the world." To that end, the boards have been working together to deal with the issues raised in response to the second exposure draft on revenue recognition.

They face a couple of "thorny" issues, specifically accounting for licenses, and whether there should be a threshold for revenue recognition when there's uncertainty relating to the amount of consideration the entity is entitled to. There are also "diverse views" on the appropriate level and nature of the disclosure package, as well as the transition: The boards have exposed a "fulsome" disclosure package, and a full retrospective approach to implementation. Some issuers feel the latter in particular is too burdensome, but investors want it, so the standard-setters are holding workshops to find common ground.

Going forward, Seidman said that FASB would hold joint meetings in November and December with IASB, with the aim of finishing their discussions late this year, and targeting an issuance date in March or April of 2013. She noted that they haven't voted on an effective date, but plan to provide ample time. "I would be very surprised if we moved with an effective date before 2015," she said.

A smooth transition is important so that investors won't be confused by the new information being released. She added that the board is planning extra educational efforts: "We don't want to end up with a bunch of detailed rules to support what is widely viewed as a principles-based standard, but we want to have enough information available to stakeholders as they implement the standard that we have a high level of comparability at the end of the day."

LEASING

Convergence on leasing has been in progress for some time, Seidman said, despite wide support from investors for its key objective of reporting lease obligations on the balance sheets of lessees. (Currently most leases are reported off-balance-sheet.)

"If I were to try to identify one cause for the difficulty of making progress on this project," she explained, "it would be that in the early days of the project, we focused primarily on the lessee, rather than on both the lessee and the lessor, and I think that strategy could have delayed the timely recognition of some of the thorny issues that we're currently dealing with."

Nonetheless, the boards are ready to release a second converged exposure draft in the next few months, which they hope will address concerns about the complexity of the standard that emerged from the first exposure draft. "We are substantially converged on the leasing proposal from top to bottom," Seidman said.

The second ED would require that all leases go on the balance sheet of the lessees, unless they are under one year of duration. It also would recognize leases in one of two categories: as purchase or financing transactions, which would use the asset financing model, with the lease asset amortized, or "more like a service or rental," where a significant amount of the value or utility of the asset would not be transferred, and the pattern of income statement recognition would be straight-line.

For the first category, lessors would recognize a receivable and derecognize a proportionate amount of the lease asset and then account for a residual; for the second, they would leave the asset on the balance sheet and account for the lease as a rental stream over time.

"Most stakeholders do not believe that all leases are the same," Seidman noted.

She expected the second converged ED to be released in the first quarter of 2013.

ACCOUNTING FOR FINANCIAL INSTRUMENTS

Seidman explained that the boards have been managing this in separate workstreams over the past few years.

Regarding classification and measurement, Seidman said, "If you had asked me two years ago what I thought the prospects of a converged standard [for accounting for financial instruments] would be, I would have told you I thought they were very low. But through persistence and the willingness of both boards to take a fresh look at their conclusions, we now are in a position of going out with a converged proposal. The FASB made some pretty significant changes to its original conclusions, and the IASB opened IFRS 9 to make a few limited changes. So I'm pleased to say that we will be going out with EDs in the next couple of months that are largely converged."

The model would classify financial assets based on their cash flow characteristics and the business purpose for which they are held. "Plain vanilla" instruments held for cash flow would be eligible for cost accounting. "Assets that fail the 'plain vanilla' or principal-and-interest test, would be required to be carried at fair value net income, full stop. So if they have 'exotic cash flow characteristics,' they would have to be carried at fair value through net income," Seidman said.

The model would apply to all debt instruments, including securities and loans, which is different from current GAAP; other key changes include narrowing which liabilities are eligible for the fair value option, and, for those items that are eligible for the fair value option, changing the way companies present the change attributable to their own credit quality; that would now be isolated and reported in other comprehensive income, instead of net income.

She noted that FASB would be issuing application guidance to clearly articulate how they intend it to be applied, and to help explain how it's different from FAS 115.

On impairment, in response to "pervasive concerns" expressed by stakeholders, FASB revised its approach, so that now, every period, the entity will evaluate the assets it holds for credit-worthiness, and then record an estimate of expected losses. The major changes are that, "There is no trigger before you start recognizing expected losses, and that you consider all available reasonable and supportable information. You don't limit the information set to what has already occurred."

FASB planned to share a draft of its standard with the IASB and "fatal flaw" reviewers in early October, and had a joint meeting on impairment planned for November. The board plans to expose before the end of 2012, as well as getting feedback on the IASB's tentative conclusions.

"If we don't seem to be ready to reach different decisions at the meeting in November," Seidman said, "it's my hope that by explaining the alternatives to stakeholders during the comment period, and then considering all of that feedback, we're in a better position to potentially reach converged conclusions." She also noted that the IASB has begun to hear some of the same concerns that FASB had been hearing from stakeholders earlier in the process.

Finally, on hedging, Seidman noted that the IASB is moving forward with a more "comprehensive" approach, but that FASB believes that hedging is related to the classification and measurement phase of the standards, so they plan to approach hedging after they have finished with classification and measurement.

INSURANCE

On insurance, Seidman said that the boards have agreed in principle that insurance obligations should be reported at a current estimate of the present value of the cash flows that are required to fulfill the contract. "Basically, it's a current measure as opposed to a locked-in measure," she said.

"But there are a number of detailed differences in our decisions, which after a few trips to the board table to try and work them out, we have not been able to resolve," she said. "The good news is we're both going out for exposure, and based on the feedback from around the world, there's still an opportunity to revisit these issues."

FASB plans to put out an exposure draft in this area in the first quarter of 2013.

GOING FORWARD

In conclusion, Seidman noted, "It's true that we're not agreeing on everything - but we're agreeing on a lot of things."

Tax Strategy: IRS Whistleblower Program Ramps Up for Increased Activity

Large whistleblower awards have been making headlines lately. News of a record $108 million award paid out by the Internal Revenue Service in September, followed by media coverage of $38 million and $2 million awards only weeks later, seem almost more akin to reports on lottery jackpots than informant compensation

These awards -- and recent and pending improvements to an IRS Whistleblower Program that has been in operation since December 2006 -- will likely generate a flood of new claims and questions from potential whistleblowers. Employers, too, are becoming more anxious over the cost of nuisance suits, or worse, that may be encouraged by these whistleblower success stories. Strategies dealing with whistleblower claims require an understanding of what is and what is not possible under Code Sec. 7623(b), as well as the consequences of claims that end up not meeting the varied dollar and procedural requirements for a whistleblower award.

The success era

BACKGROUND

The IRS Whistleblower Office was established in 2007 in response to the expanded scope of Code Sec. 7623 under the Tax Relief and Health Care Act of 2006. The 2006 amendments, which created Code Sec. 7623(b), imported concepts used within the False Claims Act proceedings into the Tax Code, enhanced by recoveries from 15 to 30 percent in certain situations. The existing IRS informant program was further enhanced by making qualifying awards mandatory (informant awards had been discretionary on the part of the IRS) and allowing for Tax Court review.

In June 2012, Stephen Whitlock, director of the Whistleblower Office, reported that since 2007, "Thousands of whistleblowers have reported hundreds of millions of dollars in suspected tax compliance issues, resulting in a wide range of audits and investigations. "

TWO AWARDS PROGRAMS

Two types of whistleblower awards exist, as currently described inSecs. 7623(a) and (b):

• A mandatory Code Sec. 7623(b) award: If the taxes, penalties, interest and other amounts in dispute exceed $2 million (and, if the case deals with an individual, gross income for the year of the offense exceeds $200,000 for at least one of the tax years in question), the IRS will pay 15 percent to 30 percent of the amount collected; and,

• A discretionary Code Sec. 7623(a) award: If the disputed amounts do not meet the criteria in 7623(b), the awards are limited to 15 percent up to $10 million, the awards are discretionary, and the informant cannot dispute the IRS's decision in Tax Court.

The amount of the award under the Whistleblower Code Sec. 7623(b) provision has a 15 percent statutory minimum. From there, the Whistleblower Office is instructed to apply positive and negative factors, but with the analysis "not reduced to a single mathematical equation." Significant positive factors, considered first, can increase the award from 15 percent to 22 percent or 30 percent. Then significant negative factors may decrease those higher awards to 15, 18, 22, 26 or 30 percent. There are no dollar caps to an award under Code Sec. 7623(b).

A claim under either program must be submitted on IRS Form 211, Application for Award for Original Information. Form 211, among other information, requests the facts and all supporting information in the claimant's possession pertinent to the alleged violation, how the information was obtained, and the amount owed. Attachment of an explanation of facts and supporting documentation is required and other attachments are permitted. The Paperwork Reduction Statement on the back of the form claims that the average time to complete Form 211 is estimated at 35 minutes. Taking considerably longer to file a claim would certainly be advised, particularly since the IRS is not obligated to ask the whistleblower for supplemental information before rejecting a claim.

While submissions that do not qualify under Sec. 7623(b) will be processed under Sec. 7623(a), that section is far less advantageous. Under Code Sec. 7623(a), the award is at the discretion of the IRS, there is no statutory award percentage, and there is no appeal to the Tax Court or elsewhere.

Under either Sec. 7623(b) or (a), the IRS requires "specific and credible information" that results in the "collection of taxes, penalties, interest or other amounts from the noncompliant taxpayer." Whistleblowing is allowed only if there is substance behind the claim. The IRS will not act on "unsupported speculation." The IRS Web site, www.irs.gov, advises, "This is not a program for resolving personal problems or disputes about a business relationship."

All awards are considered taxable income. Attorney fees and court costs deductible above the line in the year the Sec. 7623(b) award is paid may qualify the recipient of the award to reduced withholding. The IRS has emphasized, however, that the reduced-withholding program is not an opportunity to determine a whistleblower's tax liabilities.

ACCELERATED TIMELINES

As late as 2011, Sen. Charles Grassley, R-Iowa, expressed concern about the timely processing of whistleblower claims by the IRS. The lack of timeliness on the part of the service in processing an award from start to finish has been a major complaint leveled by those representing whistleblowers. The IRS continues to warn applicants, "The process, from submission of complete information to the service until the proceeds are collected, may take several years." The Whistleblower Office reported that the first case under the 2006 act had been processed in fiscal year 2011.

Effective Aug. 1, 2012, the IRS implemented a new set of internal rules for its whistleblower program designed to streamline the award process. These new guidelines to internal IRS personnel (IRM 25. 2. 2) are a direct response to the many complaints leveled over the length of time it had been taking from filing an initial claim to receiving an award. Pending permanent rules, IRM 25. 2. 2 requires IRS personnel to follow this timeline:

Claims should be initially evaluated by the Whistleblower Office within 90 days;

Review by subject matter experts in IRS Operating Divisions and Criminal Investigation should be completed within 90 days of receipt from the Whistleblower Office; and,

Whistleblowers should be notified of an award decision within 90 days of when collected proceeds can finally be determined.

Whitlock has reiterated that timely and comprehensive evaluation of information provided by whistleblowers is essential to the success of the Whistleblower Program and that timeliness is the shared responsibility of the Whistleblower Office, the Operating Divisions, and Criminal Investigation. He also has admitted, however, that circumstances may not always permit action within this timeline, but that those situations should be the exception to the rule. The nature of the award itself also guarantees a significant wait between a claim and IRS notification of an award, since payment of the targeted tax liability by the taxpayer and expiration of refund and appeals periods are first required.

KEEPING CLAIMANTS INFORMED

The IRS in the past typically would not communicate at all with a whistleblower for years after a claim was submitted. Not until the tax was collected and an award determined was there any subsequent contact, or even acknowledgement of the claim by the IRS. Although Code Sec. 7623(b) authorizes the IRS to request assistance from the whistleblower and their counsel, such contact was infrequent at best. That may be changing as the continued participation of knowledgeable insiders becomes recognized as a valuable asset. In a recent directive to personnel, Whitlock commented that whistleblowers may have insights and information that can help the service understand "complex issues or hidden relationships."

The August 2012 directive advises that debriefing, whether in person or by telephone, is an important component of the evaluation of whistleblower information prior to a decision on whether the information should be referred to the field for audit or investigation. In fact, Whitlock hopes that "debriefings will be the rule, not the exception." He also recognizes that, with appropriate controls, interaction with a whistleblower during an audit "can assist in timely and correct resolution of issues." He goes so far as to recommend a Code Sec. 6103(n) confidentiality contract for services when disclosure of taxpayer information "is necessary to obtain a whistleblower's insights and expertise into complex technical or factual issues."

MORE GUIDANCE COMING?

An August 2011 Government Accountability Office report recommended increased data collection to make the IRS's existing case management system a more effective tool for identifying aging cases, as well as for tracking decisions made by various IRS offices in the evaluation of whistleblower submissions. The IRS response to this report included a commitment to incorporate GAO recommendations into a broader review of user requirements. The IRS committed to full implementation of the GAO recommendations by Oct. 15, 2012, with "additional improvements during the winter of FY 2013." As of the submission of this article, no "implementation" has been made public, but an announcement was expected shortly.

Treasury officials have also promised new proposed regulations under the whistleblower section. They are expected to cover, among other issues, eligibility, the submission of claims and the administrative procedures under which a whistleblower can have a claim reviewed.