IRS issues guidance on what we thought were already pretty settled procedural Whistleblower issues… so not much has changed.

They say things come in threes, and last week three program manager technical assistance (“PMTA”) memoranda relating to whistleblower cases were released.  Two of the three PMTAs relate to power of attorney forms and the third discusses disclosure of taxpayer information to the whistleblower in certain circumstances. 

In PMTA 2011-31, Whistleblower Office Disclosures of Tax Return Information, the IRS concluded that employees of the Whistleblower Office are authorized to disclose taxpayer return information when (1) making determinations pursuant to section 7623, and/or (2) by providing status updates to whistleblowers regarding pending, unprocessed, or dismissed claims under section 7623.  However, the specific taxpayer return information that may be disclosed to a whistleblower in a particular instance will depend on the facts and circumstances of the matter.  The disclosure will be made pursuant to section 6103(h)(4)(A), (h)(4)(B), and/or (h)(4)(C) depending on the particular facts and circumstances. 

It is good news that the IRS is trying to find a balance between the Whistleblower Office’s non-disclosure obligation and its obligations to convey appealable determinations to whistleblowers.  However, practically this has had no effect on information provided to whistleblowers during the pendency of their claim.  PMTA 2011-31 was written a year ago and Whistleblower Analysts still only are able to say whether the claim is open or has been closed.  Clearly an award determination procedure that commences once the target taxpayer’s case is conclusively resolved is an “administrative proceeding” under section 6103(h)(4) so that a disclosure of otherwise section 6103 protected information can be made to the whistleblower, and this PTMA agrees with that concept.  Not surprising.

Additionally, in PMTA 2011-33, Powers of Attorney in the Context of Whistleblower Cases, and PMTA 2011-32, Powers of Attorney in the Context of Whistleblower Cases, the IRS concludes that any power of attorney used in the context of whistleblower representation must adhere to the standards set forth in either Circular 230, or the Conference and Practice Requirements (section 601.501 et seq. of Subpart E of Part 601 of Title 26), essentially an unaltered Form 2848, Power of Attorney and Declaration of Representation.  Again, not surprising.