Groundhog Day – Getting Information on Outcomes Back to IRS Employees Working Cases Earlier in the Stream

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I referenced the movie Groundhog Day in an earlier post about Appeals employees and the inability of those employees to judge litigating hazards because they rarely, if ever, go to court or follow through with the evidentiary issues presented in their cases.  Because they do not get appropriate feedback on their decisions, they relive decisions over and over thinking that they must have made the correct decision the last time they faced the problem.  The reference to Groundhog Day in this context reflects my interpretation of this phenomenon as one in which the Appeals Officers, like Bill Murray in the movie, repeat the same actions over and over and coming to an awareness of the problem takes a long time because of inadequate feedback.   I bring the movie up again 18 months later to argue for a change in culture at the IRS broadly to create a basis for its employees to see the impact of their decisions in order for the information about the impact to inform their judgment in later cases.  Trying to change the culture on a subject like this no doubt comes from the same hubris that compels me and other attorneys to file motions for reconsideration; however, the topic deserves another shot so I apologize to those of you who read my earlier discussion on which I base these comments.  In today’s post I write more broadly about providing feedback than just about Appeals Officers.  This does not mean I think that things have changed in Appeals since I wrote on this before but simply that the concept of feedback could apply across many parts of the IRS (and many other organizations as well).

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One advantage that practitioners have in looking at problems involving tax procedure is that in many instances, though certainly not all, the practitioner will represent the client through the entire process of working with the IRS to resolve a problem.  The practitioner will work with the client in the audit, in the appeal, in Tax Court and in collection until the matter comes to an end or, sometimes, until the client comes to the end of their resources.  While not every practitioner will follow every controversy case from beginning to end, at the IRS the system certainly does not allow the employees to follow the case from beginning to end.  Each employee encountered along the way of the life of a controversy case has a discreet function that may have no, or little, relationship to the function of the other employees engaged in the process.  As a consequence, the employee working on a segment of the case often has little knowledge of how the decisions they make impact the case as a whole.  That is unfortunate.

I think the IRS needs to build into its training and employee evaluation some component that provides the employee with feedback about the downstream actions taken on the cases on which they have worked in order to allow the employees to learn from what happens after they touch a case.  In making this suggestion, I realize that it could be expensive and that only a small percentage of cases go into litigation or go further downstream from the initial employees working the case.  Yet, even though it would cost time and money to establish such a system and even though a high percentage of cases would not result in a change from the position taken at the examination stage, I still think that the benefits to the system outweigh the costs.

On the examination side of this equation, it is interesting to look back to the way the IRS handled cases before the era in which the vast majority of exams occurred through correspondence.  At that time each IRS district had a Review Staff.  As the examining agents issued their reports, the Review Staff would actually review what the agents had done, fix any problems with the work and provide feedback to the agents.  IRS employees working in the Review Staffs were generally not the most beloved by the revenue agents because they caught their mistakes; however, the function of a good review staff, or on the Collection side a good Advisory Unit, was not only to say “Gotcha” but to train the IRS employees who interacted with taxpayers and their representatives.

By moving to Correspondence Examination Units and Automated Collection Sites the IRS gained great efficiencies in the number of cases it could handle per employee but lost almost entirely the benefits of two centers of knowledge and feedback to employees.  Treasury Inspector General for Tax Administration (TIGTA) fills a portion of the gap on a broader scale by doing reviews of the IRS in a manner and scope that did not exist 30 years ago but how many IRS employees do you think have ever read a TIGTA report and reflected on how it should impact their interaction with taxpayers and representatives.  The Taxpayer Advocate Service collects data on systemic problems through its SAMS system where IRS employees as a group have a misunderstanding of how things should work.  The SAMS system and the TIGTA reports, however, provide no information that would assist in training a specific employee about a mistake they have made (once or many times.)  The IRS needs some function that looks at the decisions made by individual employees and how those decisions play out downstream so that it can provide meaningful feedback to those employees and their managers in order to effect a change.

As practitioners we have the ability on a small scale to provide feedback that might impact an employees’ future behavior if we take down the employee number of the person with whom we deal and contact their manager when the employee makes a decision or says something that makes no sense.  Such an ad hoc system of feedback does not seem satisfactory or efficient.  The IRS needs to think about, at level of employee work on taxpayer’s cases, how it can efficiently collect data about the correctness of the employees handling of the case and how it can use the collected data to train its employees on broader issues and individual employees with specific deficiencies.

 

Comments

  1. Absolutely agree, but there is no incentive for IRS employees to care about anything beyond their own little piece of the puzzle. We care because our clients have a stake in the eventual outcome. Unless the Service was permitted to tie employee compensation back to collections or adjustments in some manner again, there is nothing to make a Revenue Officer care if they collect $5 or $500,000, or to make a Revenue Agent propose a reasonable adjustment rather than one that will put a company out of business. In a perfect world, IRS employees would care about the impact of their decisions and the application of their discretion to a case. But it’s not a perfect world and most IRS employees are just going to work every day, making a paycheck.

  2. When I was an ETA in the Manhattan District, I rarely got feedback from Appeals people. More often it was from the practitioner who had the case, and whom I had occasion to encounter in a subsequent case or at the Bar Association.

  3. David M. Fogel says:

    I agree with you that feedback on the final outcome of the case ought to be sent back to the office(s) that originated the case. When I was an Appeals Officer, the Records Section of each office (now called Accounting and Processing Support) was responsible for sending a copy of the Appeals Officer’s write-up (Form 5402 and Appeals Case Memo) to the originating office to provide them with feedback. The supervisor at the originating offices decided whether to provide the copy to the employee who originally worked the case. Often, the employee would be infuriated with the Appeals Officer’s decision and would send a rebuttal, creating an internal dispute. As a result, the IRS changed its manual to allow Appeals Officers to decide whether to send a copy back to the originating office (IRM 8.20.7.1(14)), except for certain specified situations, such as a closing agreement. Nowadays, Appeals Officers almost never decide to send a copy of the write-up back to the originating office so that they can avoid receiving a rebuttal.

  4. Deborah A Percell says:

    Not all IRS employees do their jobs just for a paycheck but the current system may encourage them to be robotic. The purpose of having an appeal review staff was to provide a written impartial review of the work done on the case in terms of facts, law and argument for the Government as well as the taxpayer. It should always go to the agent as well as their managers. It encouraged case development as well as issue recognition possibly missed. It was encouraging to me as an RA to get a written commendation on a case that closed agreed at the examination level. The purpose of this required written review was to provided constructive criticisms in the feedback to the Revenue Agents. RA’s are required in any case going to appeals to include “agreed” facts, law arguments for the government including case citations and how the case citation was applicable to the facts. An accurate taxpayer position, if provide, as well as a rebuttal position and conclusion. Managers should always do a closing conference with the representative and agent . If the case merited a rebuttal to Appeals with managerial approval that is also a learning process. . It was a system that attempted to remove ego and reduce litigation costs. If an issue was settled under hazards that is part of the the appeals process. Assigning cases to correspondence exams or letting a representative turn the case into a correspondence exam adds to the litigation costs for the government as well as their legal representatives.

  5. Ronald Wiener says:

    Keith, I couldn’t agree with you more that this is a very important issue at all levels of Exam and Collection, especially in W&I and SB/SE. I have a suggestion for one way to provide individual IRS employees with the perspective that would be generated by “ideal world feedback” on their actual cases, but without incurring the costs and delays that such a system would entail. In these days of badly understaffed IRS functions, an pragmatic way to start might at least provide a starting point. I suggest that the CPE that each IRS employee get should include a few select examples showing how unresolved cases that had been handled by employees performing his/her duties played out when they went up the chain to their ultimate conclusion. The cases should be carefully selected to include cases ultimately resolved consistently with the positions taken by the employees’ counterparts and other cases where the ultimate resolution was contrary to the initial function’s position. In my experience, a significant proportion of IRS employees at all levels basically would like to do “the right thing” and would probably welcome the knowledge imparted by examples of that kind. Especially for employees working in Campus Compliance functions, this could provide the kind of feedback that used to be [and I’m sure in some cases still is] provided in the field by more experienced RA’s, RO’s, AO’s, etc. to new hires. It can provide the kind of perspective that a Revenue Agent can learn from perusing some of the IRS Audit Technique Guides – something I recommend to both IRS employees and private practitioners.

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