This article highlighting the background and traits of a qualified whistleblower lawyer is sent as part of NWC’s “Sunday Read” series. For more information like this, please join our mailing list.
In the most recent “Getting to Know Whistleblower Attorneys” feature, National Whistleblower Center (NWC) recently spotlighted one of the leading tax whistleblower authorities in the U.S., Dean A. Zerbe.
Zerbe is the NWC’s Senior Policy Analyst and previously served as Senior Counsel and Tax Counsel on the Senate Finance Committee for Sen. Charles E. Grassley (R-IA). His work helped create the IRS Whistleblower Office (WBO) and its Whistleblower Program; on the latter, he recently lent his perspective on the urgent need for reform.
In this Sunday Read, we learn more about his legal and business philosophies, what it took to close a recent multimillion-dollar claim, happenings with regard to the IRS Whistleblower Program on Capitol Hill and guidance for lawyers aspiring to practice in the area.
Continuing a Dialogue with NWC Senior Policy Analyst Dean A. Zerbe
In a September NWC article about the need for IRS Whistleblower Program reform, you mentioned how much you respected Donald Korb, the nominee for IRS Chief Counsel, especially for his about-face on whistleblower policy.
That really resonated with me, because we often see government officials double-down on their point of view rather than open their minds. What does it take to sway somebody on Capitol Hill about whistleblower policy?
The facts are so overwhelming, between the dollars collected and especially the enormous role of whistleblowers in the fight against illegal offshore accounts. Encouraging whistleblowers to come forward was an utterly alien concept for the IRS and the tax bar in general.
From Sen. Grassley camp’s viewpoint, we had seen the benefits of whistleblowers in the False Claims Act and knew – to borrow an Iowa phrase – ‘if you build it, they will come.’ If you provide a strong award program, it will encourage highly qualified and knowledgeable whistleblowers to come forward and also bring in attorneys who will closely vet and screen cases. And that is what happened. Now billions are pouring in, thanks to the tax whistleblower law. This is proof of the highest form of flattery since Congress passed whistleblower laws for the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) that are modelled after the IRS whistleblower law.
I also believe the whistleblower program has benefitted from having superb professional staff. The IRS WBO has been mindful of the need to be protective of taxpayer information and that has gone a long way to preventing missteps that were of concern when the law was first enacted in 2006.
Do you think that Korb’s new perspective will also influence public perception?
I believe Korb’s comments affirm what has already been recognized – the days of arguing about the whistleblower program are over. The verdict is in. I view that in some ways Former IRS Commissioner Charles Rettig was critical. Commissioner Rettig is a highly respected tax litigation and as commissioner he became committed to the success of the whistleblower program and challenging the IRS to expand and improve the program.
Congratulations on securing a $35 million tax whistleblower award for an anonymous client who came forward about a Fortune 500 company for tax underpayments. You were brought into the case about three years ago. For how many years prior had it been in motion?
The whistleblower had been waiting more than 10 years before I was brought in to try and help move things along. Even then, it was hard labor to get the award through – but thanks to the new acting IRS WBO director, Erick Martinez, and the dedicated WBO staff, we were finally able to secure a well-deserved award for the whistleblowers.
How do you comfort a client who will face inevitable delays that can last so long?
It can be difficult, and especially frustrating, in terms of having few good alternatives for the whistleblower. In general, I think it helps to understand that the WBO is trying in good faith to move forward on awards. I’m heartened by the new director’s commitment to working with practitioners on looking eyes open at what may be done in a case – and also seeking to improve communication. The greatest grind for whistleblowers is probably not the wait itself, but not knowing when the wait will end.
In your experience, what is a common trait among whistleblowers that the public should know?
They’ve commonly tried to raise their concerns internally before they go to the outside – to the government or the press. It’s important for organizations to be open and welcoming to whistleblowers.
What advice do you have for other lawyers, and particularly tax lawyers, who might consider entering the whistleblower arena?
Patience. As we said, it takes years for these cases to move forward. The statute correctly requires that the tax dollars must be collected and finalized (no appeal) before an award. Tax administration moves slowly and is in place to ensure taxpayers have significant rights. That said, the IRS WBO is making strides in ‘disaggregation’– which allow awards to be paid on a rolling basis as cases conclude – to speed up the timing of awards.
Looking ahead, how might emerging technologies (AI, blockchain, etc.) and globalization affect whistleblower programs—both in terms of new risks (e.g. data privacy, cross-border enforcement) and potential enhancements? What reforms do you think will be critical in adapting whistleblower policy to these trends?
The most interesting development I see is that other countries are now recognizing the value of awarding and encouraging whistleblowers. We saw a prime example when Mexican anti-corruption attorney María de los Ángeles Estrada spoke at National Whistleblower Day 2024.
The United Nations is setting an example. And powerful countries are also taking action, like South Korea and Germany. And now the UK is soon to launch a very extensive new tax whistleblower program. I’m hopeful. When it comes to very wealthy individuals, multinational corporations or something like blockchain – tax evasion frequently becomes a multinational issue. Having more countries open to awarding whistleblowers will be a strong step forward. Other nations need to look closely at the success of the us tax whistleblower program.
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NWC thanks Dean Zerbe for his honest insight and perspective. Learn more about him here, on Whistleblower Network News podcast, “Whistleblower of the Week,” and in the prior edition of Sunday Read. Make sure to join NWC’s mailing list, subscribe to the newsletter on LinkedIn, and follow us on Medium to receive all notifications!
Get to know other whistleblower attorneys, such as:
· María de los Ángeles Estrada
The “Getting To Know Whistleblower Attorneys” series will continue.
Resources For Whistleblowers
The decision to come forward is not one to be taken lightly, nor should selecting a whistleblower lawyer. NWC provides resources that can connect you with the right legal professional.
Neither the NWC nor the Whistleblower Legal Defense and Education Fund can provide legal advice as part of the LAP intake process. Always remember an attorney does NOT represent you until and unless you have a signed written representation agreement with an attorney.
Fill out the secure intake form.
You can also learn more about the type of whistleblower lawyer needed for your claim in Rules for Whistleblowers: A Handbook for Doing What’s Right, written by NWC Founder and Chairman of the Board Stephen M. Kohn.
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This story was written by Justin Smulison, a professional writer, podcaster, and event host based in New York.
