GOP IRS Whistleblower Portal Makes Some Advocates Uneasy

Treasury Secretary Janet Yellen pledged to House Ways and Means Committee Republicans she would ensure IRS employees are aware of “all of the options” for reporting wrongdoing.

But some say making agency employees comfortable reporting misdeeds isn’t as simple as sending a link as House Republicans are hoping to accomplish with a new whistleblower portal.

The GOP-led panel, which seeks to conduct aggressive oversight of the IRS, announced the portal in late January giving agency employees a new resource to report misconduct or other wrongdoing.

Even though whistleblower law protects federal employees from retribution for reporting wrongdoing within their agency, some worry staff willing to report misdeeds will remain silent, fearing negative consequences if they speak out.

“There is a risk for a plethora of forms of retaliation—whether they are technically prohibited or not,” said Siri Nelson, Executive Director of the National Whistleblower Center, who said the portal is not typical. “Trust is the central component necessary for whistleblowers to feel comfortable coming forward. Congress has not been particularly good at fostering that trust, and neither has the IRS.”

At a hearing last week, Ways and Means Chair Jason Smith (R-Mo.) reminded Yellen of his letter to then-IRS Acting Commissioner Douglas O’Donnell informing him of the portal. The letter requested a copy of his letter be shared with all IRS employees, “to ensure they are notified that this portal exists, and it is available for them to use.”

“The agency has thus far refused to do so,” Smith said at the hearing, during a back-and-forth where he pressed for her commitment to share information about the portal with IRS employees.

“I will make sure that they know all of the options that they have,"Yellen said.

Smith put out a Feb. 15 release accusing the IRS of ignoring the committee’s request, saying the IRS “has failed to take a simple but vital step towards demonstrating its willingness to work in good faith to shine a light on any abuse and mistreatment of taxpayers.”

IRS officials dispute that Smith’s letter was ignored. “IRS sent a letter to the Ways and Means Committee on Feb. 17,” according to the agency.

A Ways and Means spokesman declined to answer questions about whether it received the IRS letter, or what the letter said. He also did not say whether the committee has received any submissions through the portal, or whether it would pursue legislation or oversight of the agency related to improving whistleblower resources.

The webpage for the portal tells IRS employees to not submit reports using official resources or while working, and to not submit classified information.

Current Protections

The IRS has protections in place to enforce whistleblower rights and makes sure employees are aware of their rights, according to an IRS statement. That includes mandatory trainings for new employees, annual training for all employees, “and a myriad of internal and external options for employees to safely report their concerns while protecting the confidentiality of taxpayer information.”

The congressional committees are one of the places of last resort to air grievances, said Dean Zerbe, an attorney who represents whistleblowers and was chief investigative counsel for Sen. Chuck Grassley (R-Iowa) when he led the Finance Committee. But it’s up to the committee to make whistleblowers feel comfortable to make reports.

“The committees obviously need to make sure that they’re protecting the whistleblowers, and that they’re not subject to retribution,” he said.

Whistleblower reports from IRS employees typically require extra care because a report may include details protected under tax code Section 6103, which governs how the IRS handles confidential taxpayer information.

One way to make whistleblowers more comfortable about coming forward is strengthening whistleblower laws, said Joe Spielberger, policy counsel for the Project On Government Oversight.

“There are definitely lots of loopholes in the law that leave federal employees vulnerable, especially when it comes to defending against retaliation,” Spielberger said, pointing to legislation that passed the House last Congress that would have expanded and clarified whistleblower protections.

The bill, which garnered two Republican votes, would prohibit agencies from disclosing a whistleblower’s identity and launching retaliatory investigations against employees. It would also allow employees to go to court if their claim was not adjudicated quickly.

“We would definitely look toward House Republicans to come out in support of some of this bipartisan legislation that’s been introduced and reintroduced,” Spielberger said. “That will help close some of those loopholes and better protect employees both at the IRS and throughout the federal workforce.”

On the Hill

The IRS also has a venue for non-employees to report violations of IRS rules, and provides a percentage of the money collected from non-compliant taxpayers as a reward. A bipartisan group of lawmakers reintroduced a bill this Congress that seeks to improve that program, which currently can take more than a decade to compensate the whistleblowers.

Grassley and Finance Committee Chair Ron Wyden (D-Ore.) introduced a Senate companion bill to one introduced in the House by Reps. Mike Kelly (R-Pa.) and Mike Thompson (D-Calif.). The bill seeks to speed up claims, enhance anonymity and improve the program’s annual report to Congress.

Sen. Ben Cardin (D-Md.), a co-sponsor of the bill, conceded that the bill doesn’t deal with employee whistleblowers, but said the sees opportunity for improvement with the $80 billion provided in the climate-and-tax bill and the confirmation of Danny Werfel as IRS commissioner.

“It’s a good opportunity with all the additional resources to be able to protect our workforce to help us, not only with challenges within the IRS, but also compliance,” he said.

For whistleblower advocate Nelson, one way to do that is for agencies to provide additional public-facing resources that clearly spell out — not only to employees but to the public — how these whistleblower programs fit together and how they function.

“Federal employees need to know where they can report, so I agree with the Ways and Means intention,” said Nelson. “I think that maybe their strategy is a little misguided, but I hope this results in better protections for IRS employee whistleblowers.”