We welcome back guest blogger Marilyn Ames who takes a look at a recent complaint filed against the IRS by individuals who may not have received zealous representation from their accountants based on a conflict of interest. Like me, Marilyn is retired from the Office of Chief Counsel, IRS where she worked for many years as a manager in the Houston office. She currently assists in updating Saltzman and Book, IRS Practice and Procedure chapters while enjoying her retirement in Alaska. Keith
In an action that partakes a little of the old fairy tale of spinning gold out of straw, on April 22, 2016, the former CEO and COO of Sprint Corporation, William Esrey and Ronald LeMay, filed suit against the United States seeking damages of $42.5 and $116.8 million, respectively, under the Federal Tort Claims Act. The basis for their suit is that the Internal Revenue Service did not inform them that their long-time accounting firm, Ernst & Young, was under investigation for its actions in selling tax shelters. Mr. Esrey and Mr. LeMay had not only purchased tax shelters from Ernst & Young, but Ernst & Young was the certified public accounting firm for their employer, Sprint. The plaintiffs contend the IRS “helped EY to hide information from Plaintiffs knowing that such information would have been critical to Plaintiffs’ evaluation of whether to trust EY and whether to continue to tell Sprint that EY was trustworthy and devoted to helping Plaintiffs resolve their tax audits with the IRS.” The complaint can be viewed here.
A little background to this convoluted story might be helpful before taking a quick look at the basis for Mr. Esrey’s and Mr. LeMay’s suit and the greater issues the suit raises. At the time when our story begins unfolding, Mr. Esrey was Sprint’s CEO and the Chairman of its board, and Mr. LeMay was its COO and, according to the complaint, Mr. Esrey’s heir apparent. Mr. Esrey and Mr. LeMay both employed Ernst & Young as a tax advisor and financial planner, and Ernst & Young was also the certified public accountant for Sprint. Messrs. Esrey and LeMay both purchased tax shelters from E&Y in each of the years from 1999 through 2001.
The IRS did not take a kindly view of E&Y’s tax shelters, and according to the complaint, began an investigation of these transactions in March of 2002, that at some point included both civil and criminal investigators. The IRS also began auditing those taxpayers who had purchased tax shelters from E&Y, including the plaintiffs. Apparently not recognizing that having the seller of your tax shelter represent you before the IRS might be problematic, Mr. Esrey and Mr. LeMay engaged E&Y to represent them when the IRS began looking at their tax returns. In the meantime, E&Y negotiated a resolution with the IRS with respect to some of its tax shelter activities, and in June of 2003, paid the IRS $15 million for failing to register the tax shelters they were selling and for failing to maintain lists of those for whom E&Y had acted as a material advisor with respect to the tax shelters. (Although neither the complaint nor the IRS press release indicate the basis for the payment, presumably these were penalties imposed under IRC §§ 6707 and 6708, which are in a subchapter titled “Assessable Penalties.”) According to the complaint, as part of the settlement the IRS agreed not to use the word “penalty” in its press release in exchange for an additional $1.4 million over the amount previously agreed to.
After the settlement in 2003, the criminal investigation of E&Y and its employees continued on, and in May of 2007, four employees were indicted on tax charges in connection with the marketing of tax shelters, and two were eventually convicted. Newspapers began reporting that E&Y was under investigation for these activities. Plaintiffs contend that it was at this time they learned of the criminal investigation.
When the employment contracts for Mr. Esrey and Mr. LeMay were renewed in 2001, the plaintiffs disclosed to the Sprint board of directors that they had “entered into the transactions that EY had promoted.” By 2002, according to the complaint, the Sprint board and audit committee became concerned there would be a conflict of interest between Esrey and LeMay and E&Y because of the audit of the tax shelters. The complaint does not disclose what caused Sprint to become concerned about this. The plaintiffs made a presentation to the board in December of 2002 recommending that Sprint dismiss E&Y as its auditor because of the board’s concern regarding a conflict of interest, and E&Y made a presentation that its advice to the plaintiffs “was sound and its actions proper.” The board determined that a potential conflict of interest was great, but that firing its auditor would result in negative publicity and would impact Sprint. Instead, they asked Mr. Esrey and Mr. LeMay to resign, which they did in 2003. Although the complaint does not indicate how the amount requested in damages was computed, it was this loss of their employment that has caused the plaintiffs to sue the United States. For those of you who want to know the rest of the story, the complaint also states that Mr. Esrey and Mr. LeMay filed suit in the Tax Court with respect to their tax shelters, the result of which is not disclosed, and they also initiated an arbitration action against E&Y and received a final award in 2014, the amount of which is also unknown.
Ignoring such obvious issues as the statute of limitations problem and the causation issue (after all, the injury complained of occurred in 2003, and was the result of Sprint choosing its auditor over its executives), the larger questions for the tax community are whether a failure to disclose information about a taxpayer’s representative to the taxpayer is actionable under the Federal Tort Claims Act, and whether it should be. By its terms, 28 USC § 2674 provides a remedy for persons injured by governmental negligence in circumstances like those in which a person would be compensated for the negligence of another private person. Generally, in litigation between private parties, the burden to disclose a conflict of interest in legal representation is on the attorney representing the taxpayer, not on the opposing party or the opposing party’s counsel. Is it ethical or even desirable to have the IRS reaching out to a taxpayer to question the taxpayer’s choice of representative? If a failure to warn a taxpayer is actionable, when does the duty to warn arise? Should the IRS issue press releases when it begins investigating return preparers, so the public can avoid those who may prepare questionable returns – at the risk of ruining a potentially innocent person’s business? An investigation is simply that – an investigation.
The FTCA also permits the United States to assert any defense based on judicial or legislative immunity that would otherwise have been available to the employee whose actions form the basis for the suit. Any plaintiff arguing that the IRS should have disclosed information to the plaintiff that does not involve the plaintiff’s own tax returns is always going to have to overcome the hurdle of IRC § 6103 – the disclosure statute. The plaintiffs have ignored this hurdle in their complaint, but it is a sure bet that the United States will not. It is clear that the IRS believed that Section 6103 applied to the investigation of E&Y; the press release announcing the $15 million paid to the IRS expressly states that the closing agreement between E&Y and the IRS included a disclosure authorization allowing the IRS to issue the press release. If the IRS does have a duty to disclose that a representative is questionable, how does the IRS do that without potentially disclosing the tax return information of other taxpayers?
In support of its allegations that the IRS is liable for the plaintiffs losing their jobs, the complaint asserts that the IRS had a policy at the time of the E&Y audits to seek assurances from taxpayer representatives who were tax shelter promoters that their clients were informed of potential conflicts of interest, citing a then-applicable provision of the IRM and an opinion given by Chief Counsel to an employee of the IRS. While the plaintiffs are correct that there was such a policy, the policy was to require promoters to inform their clients of a potential conflict of interest, and for the IRS to seek assurances from the representative that it had done so. While the complaint is silent on whether the IRS asked for and received such an assurance from E&Y, it is not clear that even if the IRS failed to do so that the plaintiffs would have a right to recover. They would first have to overcome the hurdle of United States v. Caceres, 440 US 741 (1979), in which the Supreme Court held, in a case involving the Internal Revenue Manual, that courts are only required to enforce agency regulations when compliance is mandated by the Constitution or federal law; otherwise, agency directives do not give taxpayers rights not otherwise given. If the plaintiffs prevail in this suit against the United States, will the IRS be tempted to hide its directions to employees in documents not publicly disclosed, or for IRS attorneys to only give oral advice not made available to the public?
This case raises a number of interesting questions, and its progress will bear watching for the greater impact it may have on both those who enforce the tax laws and those who represent taxpayers.