Tax Court: IRS Whistleblower Claims Survive Even Death

In Insinga v. Commissioner of Internal Rev. Service, 9011-13W, 2021 WL 4983084 (U.S. Tax Ct. Oct. 27, 2021), the United States Tax Court recently tackled an issue of first impression: whether an IRS whistleblower’s claim may survive death such that the claim may be pursued by his or her estate in the U.S. Tax Court. The tax court found that although the decedent had passed away while his petition with the court was still pending, his estate could pursue the whistleblower’s claim in his stead. 

In coming to that conclusion, the court noted that the IRS whistleblower statute was silent on the issue. The court explained that the general rule under the federal common law is that a claim under a remedial statute survives death. The court held that the IRS whistleblower statute is remedial, as opposed to penal, relying on case law interpreting the more widely utilized False Claims Act. The court recognized that the IRS whistleblower law aims to not just remedy harm to the public fisc but also injury incurred by the whistleblower (e.g., retaliation and “professional ostracism”). The court also looked to the fact that the law’s reward provisions, which provide for a greater award if the whistleblower substantially contributes to the government’s efforts, reflects an intent to reward whistleblowers who may incur harm in bringing their claims (e.g., those that go out on the proverbial limb). Further, while not dispositive, the tax court found support in the fact that its holding was broadly consistent with the IRS’s own regulatory guidance. 

In the end, the court found that the IRS whistleblower’s claim survived his death and so the whistleblower’s estate could act as a successor in pursuing the decedent’s whistleblower award claim. That puts the IRS whistleblower law in accord with case law under the False Claims Act. It also provides support for similar holdings in the context of the SEC and CFTC whistleblower programs which have structures and policy underpinnings which largely parallel those in the IRS whistleblower and FCA laws.

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