Shulman Recounts His Tenure and Comments on Offshore Initiatives (4/6/12)

IRS Commissioner Shulman has announced that he will not accept a second term.  See  Richard Rubin, IRS Commissioner Says He Doesn’t Want Second Term (Bloomberg 4/5/12), here.  In a speech, he recounted the IRS's achievements during his term.  Prepared Remarks Commissioner of Internal Revenue Douglas H. Shulman before the National Press Club (IR-2012-42 4/5/12), here.  Among the comments were the following regarding the IRS's foreign accounts initiatives:

Both corporations and individuals operate in the global economy. For example, many individuals have global exposure through their investments and 401Ks. Yet, this fundamental shift to a more global economy has created a real set of challenges for the IRS. On the individual front, we have made putting a big dent in offshore tax evasion a major priority. 

We view offshore tax evasion as an issue of fundamental fairness. Wealthy people who unlawfully hide their money offshore aren’t paying the taxes they owe, while schoolteachers, firefighters and other ordinary citizens who play by the rules are forced to pick up the slack. 

Over the past four years, we have significantly increased our resources and focus on offshore tax evasion, and the results have been substantial. We upped the ante in a meaningful way with our work on Swiss financial institutions – where for the first time in history, a bank secrecy jurisdiction turned over thousands of names and account numbers. 

As we increased our enforcement efforts and gained significant momentum, we gave taxpayers a chance to come in voluntarily and avoid going to jail. In a typical year, we used to get 100 or so taxpayers who used our voluntary disclosure program. For this program, we thought that figure would rise to maybe 1,000.

So, we are very pleased that through the end of 2011, we’ve had approximately 33,000 voluntary disclosures from individuals who came in under several special programs we started in 2009. To date, these individuals have paid back taxes and stiff penalties amounting to more than $4.4 billion, and the number continues to grow. We are now mining the information we have received to date and have launched our next wave of investigations on banks, bankers, intermediaries and taxpayers. 

Collecting additional revenue for past misdeeds – as important as that may be – is not the only consideration here. It is perhaps more important that we’re bringing U.S. taxpayers back into the system…back into compliance… so they properly report and pay their taxes for years to come. We have fundamentally changed the risk calculus of taxpayers who are thinking about hiding their money overseas, and we are well on our way to deterring the next generation of taxpayers from using hidden bank accounts to cheat on their taxes.

I wonder if the Commissioner really understands how misfocused the program really is.  Does he really understand the difference between whales and minnows, both of which he sweeps into the same net?  Punishment should not be the same for both.  Yet, the IRS offers a program of one size fits all, where the penalties for the whales (most of whom are really bad guys in terms of tax noncompliance) and the minnows (most of who are not).  I am sure that the Commissioner and the IRS see the opt out as the safety valve as the way to deal with minnows and nuance, so that the inside penalties really apply to only on the bad guys.  But the opt out because of all its uncertainties and interminable delays poorly serve a community of taxpayers who should receive at worst a light tap on the wrist and who are willing to be compliant into the future now that they are fully educated about the expectations of the IRS.

I strongly urge the IRS to move swiftly to publish guidance for how taxpayers will be treated on the opt out audit.  That guidance should not cover the whales -- who are the ones likely to deserve the onerous penalties and should stay within the program penalty structure without opting out.  The guidance should make the punishment fit the conduct -- I don't say crime because in these cases there is no crime.  That would mean in many, perhaps most, cases a future compliance (some call it a warning) letter or a relatively light slap on the wrist and at least an implicit welcome into the community of taxpayers with full knowledge of what is expected in this area.  This would help alleviate a lot of the angst that these good people have about entering the program and getting right with the IRS.  That way, these taxpayers can feel more comfortably about opting out in the first place and, because they will know something about the administration of the opt out audit, will not feel that for long  periods they have the Sword of Damocles hanging over them.