Today, we welcome back guest blogger, Rachael E. Rubenstein. Rachael served as the principal author in the Identity Theft chapter in the recently published 6th Edition of Effectively Representing Your Client before the IRS. So much has been happening in this area recently that we asked Rachael to bring us up to date and she has done so with a comprehensive post on this area over the past few months. Rachael just moved from a teaching position at St. Mary’s Law School in San Antonio, Texas where she directed the low income taxpayer clinic to the firm of Strasburger & Price, LLP in the same city. We appreciate her willingness to write extensively while in the midst of a practice move. Keith
Tax-related identity theft was a hot topic this summer. Since I last blogged about it in May, the NTA released her Fiscal Year 2016 Objectives Report to Congress, alerting us to an upswing in the number of open identity theft cases in IRS inventory; a written report was released containing details of the 2015 Security Summit held by Commissioner Koskinen; Senators Johnson, Warner, and Ayotte introduced the Social Security Identity Defense Act of 2015; and the Senate Budget Committee held a hearing, convened by Senator Ayotte, on Tax-Related Identity Theft and Fraudulent Returns.read more...
My previous post optimistically noted that after almost a decade of annual increases, the volume of IRS identity theft incidents finally declined by roughly 42 percent in 2014 compared to its peak of 1,901,105 in 2013. Considering the attention and resources focused on this problem, the marked decline in 2014 showed promise. Unfortunately, the NTA’s June report indicates that the number of open identity theft cases impacting taxpayers in IRS inventory (as of May 2015) swelled again to near May 2013 levels—up 69 percent from May 2014.
The NTA attributes the recent rise in open identity theft cases back to levels observed in 2013 to “the overreach of the TPP [Taxpayer Protection Program] filters and understaffing of the TPP phone lines.” The TPP is responsible for detection, evaluation, and prevention of improper refunds related to identity theft. During the 2015 filing season, TPP return processing filters identified 1,558,874 potentially fraudulent returns using 196 distinct filters that flag returns when certain characteristics are identified. The false positive rate was around 34 percent, meaning that a third of electronically filed tax returns that TPP stopped from posting to a particular account were filed by legitimate taxpayers who expected timely receipt of their tax refunds. These taxpayers received a TPP notice instructing them to call a particular phone number to resolve the issue; however, most that called during the peak of tax season in February were unable to get through at all to a live phone assistor. For those that did get through, there average wait time was between 20 minutes to over an hour.
Immediately after the May 2015 data breach scandal (which turned out to affect around 250,000 more taxpayers than initially reported), we learned that earlier in the Spring, Commissioner Koskinen convened key officials from state taxing authorities and the private tax industry together for a Security Summit to discuss the significant challenges facing tax administration as a result of tax-related identity theft, and potential coordinated strategies. It was widely reported that an agreement was reached among the participants “to form a public-private partnership committed to protecting the nation’s taxpayers and the tax system from IDT [identity theft] refund fraud.” In June, a 9 page report was released detailing the goals of each of the working groups formed from the Security Summit, outlining recommendations, listing existing proposals for congressional consideration, discussing next steps, and describing the participants. This partnership is certainly an innovative approach, and it will be interesting to see how this collaboration plays out.
The Social Security Identity Defense Act was introduced in May and is aimed at amending section 6103 to make it easier for victims of identity theft and law enforcement officials to receive information pertaining to tax-related incidents of identity theft from the FBI and DOJ. Although it is unlikely to be enacted, this bill has reignited discussion regarding the intersection of identity theft and section 6103 disclosure issues. For example—to what extent is the victim taxpayer entitled to information from the Service regarding the incident? Presently, under PMTA 2012-005, Chief Counsel takes the position that once an invalid return is submitted, it becomes the return information of both the true owner of the SSN and the identity thief because the information relates to the potential investigation of liability with respect to both parties. Therefore, the victim of identity theft should have a right to a copy of the bad tax return as long as disclosure would not impair federal tax administration.
In confirmed or suspected cases of identity theft, a taxpayer’s account is marked with various types of identity theft indictors. When such an indicator is present, taxpayers and their representatives may find it difficult to obtain copies of tax returns or related tax transcripts from the Service because employees are trained to safeguard taxpayer information protected by section 6103. Disclosure violations carry the threat of civil fines and even potential criminal charges. Despite Chief Counsel guidance indicting that the bad return is the return information of both the victim and the alleged identity thief, the IRM “instructs employees to not to provide . . . copies of tax returns when identity theft indicators are present on the requestor’s account.” In May of 2015, Senator Ayotte wrote a letter to Commissioner Koskinen expressing her concern “with IRS’s refusal to provide tax identity theft victims with copies of the fraudulent returns filed in their names.” She referenced the 2012 Chief Counsel memorandum to support her complaint and request for the Service to change its non-disclosure practices. Commissioner Koskinen acquiescence in a written response issued later the same month and stated that the Service would develop procedures to allow victims of identity theft to request and receive (redacted) copies of tax returns filed under their SSNs.
The hearing held in August covered familiar and fairly bleak territory as well as some encouraging announcements about major programmatic changes regarding identity theft cases processing. A taxpayer testified about the bureaucratic nightmare she endured dealing with IRS and other agencies when her e-filed return was rejected because her deceased child’s SSN was used to file multiple fraudulent returns (it is worth noting that none of the fraudulent filings actually got passed IRS filters). Christopher Lee, TAS Senior Attorney Advisor; J. Russel George, TIGTA; and Commissioner Koskinen testified about the general state of refund-related identity theft—the broad consensus was that despite its many gains in terms of detection and prevention of refund-related identity theft, the Service still has a long way to go in order to get ahead of the overall identity theft crisis.
In addition to the jump in the number of incidents during the 2015 filing season, and the TPP false positive rate, lengthy delays in case processing and poor customer service are stubborn problems (although the situation is certainly not as bad as it once was in the early part of the decade). A study conducted by TAS of cases closed in 2014 found that 179 days was the average resolution time for an identity theft case from a taxpayer’s perspective. The Service’s slow progress towards improvement of case processing times is partly attributable to the increasing complexity of identity theft cases. Such cases require the involvement of multiple functions under the Service’s decentralized case management structure, which has been in operation for several years. The same 2014 TAS study found that approximately 30 percent of cases involve multiple issues.
TAS has repeatedly called for the Service to set-up “a sole point of contact system” for victims with complex identity theft cases. While the Service has announced its final phase of a plan to re-engineer its approach to victim assistance, moving towards a more centralized model, the prospects for adoption of this particular TAS recommendation appear dim. Commissioner Koskinen’s version of a “single point of contact” described during the hearing involves yet another specialized toll free phone line, as opposed to the TAS model of one designated employee to handle a particular victim’s case.
The Commissioner’s testimony reminded stakeholders that sophisticated cyber criminals present momentous challenges to the Service in an era of archaic IRS technological systems and strained financial resources. Still, he pledged that the Service is continuing to work diligently on efforts to combat identity theft, and he announced some specific plans for 2015-2016. One is the roll out of the Identity Theft Assistance organization, a consolidation of various identity theft programs into one division aimed at unifying the Service’s victim assistance and identity theft compliance activities. Another is an improved case resolution average of 120 days. Further, new protections for electronic filing, developed by the Security Summit working groups, were promised before the 2016 filing season.
The Service requested additional money for improved cyber security and revamped identity theft initiatives, which is reflected in the President’s FY 2016 Budget pending before congress. All tax administrators who testified at the hearing agree that the IRS needs more funding to address the identity theft epidemic. They also share the view that congress should take a more active role in enacting various legislative tools to assist the IRS in combating this pervasive problem.