New York False Claims Act
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State False Claims Acts: “Knowing” Why They Matter for Tax Professionals

Like the federal government, many states have adopted False Claims Act (FCA) provisions that exclude tax matters from coverage. The federal model makes clear that matters under the Internal Revenue Service are not covered by the law,[1] and in the vast majority of cases, states also explicitly exclude tax from coverage.[2] However, there is a growing number of states seeking to extend FCA liability to tax cases in which “knowing” causes of action apply to any person that knowingly conceals, avoids or decreases an obligation to pay the state.[3] In such states, FCA liability, including punitive penalties and damages, will be argued to create liability for certified public accountants (CPAs) and other tax professionals who advise clients to take a favorable tax position on a tax return or simply file a return with an “error.” Under a “knowing” standard, an “error” is asserted to exist when the taxpayer’s position differs from someone else’s view of the law—the reasonableness of the position simply does not matter.

This risk is not hyperbole. On March 23, 2022, New York Attorney General Letitia James issued a warning to cryptocurrency investors and their tax advisors: “The consequences of a taxpayer’s failure to properly report income . . . are potentially far-reaching and severe [and could] result in taxpayer liability under the New York False Claims Act,” adding, “False Claims Act liability may also extend to tax professionals advising clients. . .”[4]

New York and Washington, DC, already extend FCA liability to tax cases and apply a “knowing” standard. In other states, FCA expansion bills have started popping up, too. For instance, there is currently a FCA bill before Ohio legislature proposing to extend FCA liability to tax cases and any person that “[k]nowingly present[s], or cause[s] to be presented, to an officer or employee of the state. . .a false or misleading claim for payment or approval.”[5] Recently, a proposal to expand the Connecticut FCA to tax cases failed to advance.[6] While the Connecticut FCA already includes a “knowing” standard, it only applies to false claims made in the Medicaid context. Additionally, New York legislature is considering a bill that would further expand the application of its FCA’s “knowledge” standard to “obligations” under the Tax Law.[7] However, the term is not defined in the Tax Law, making it unclear whether it would apply only to the “obligation” to file a return or to situations where a CPA or tax advisor provides general advice on a specific tax matter.

The trend to loosen the standard for state FCAs liability is a problematic shift leading to lawsuits that will assert that simply providing advice or a good-faith interpretation of the tax law to a client could result in liability under a state’s FCA. Adding insult to injury, these suits will threaten treble damages, attorneys’ fees and civil penalties per occurrence. Taxpayers and their advisors should know the breadth of each state’s FCA provisions and take them into account as [...]

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McDermott Defeats New York False Claims Act Case Alleging Starbucks Failed to Collect and Remit Sales Tax

On April 9, 2018, the New York State Supreme Court granted Starbucks’ motion to dismiss claims that it had failed to collect more than $10 million of sales tax at its New York stores. Lawyers from McDermott’s State and Local Tax (SALT) group and its White Collar and Securities Defense team handled the matter.

A unique feature of New York law is that the attorney general and private qui tam plaintiffs are permitted to bring New York False Claims Act (NYFCA) actions under New York Financial Law for “claims, records, or statements made under the tax law.” Fin. L. 198(4)(a)(i)-(iii). Under federal law and the law of most states, there is no False Claims Act liability for tax issues. But in New York, the attorney general and private plaintiffs can pursue False Claims Act cases for failure to comply with tax law. There have been numerous large settlements and judgments issued against major companies under the NYFCA, including one settlement for $40 million. See A.G. Schneiderman Announces $40 Million Settlement With Investment Management Company for Tax Abuses, Marking Largest Whistleblower Recovery in Office’s History (April 18, 2017). If successful, qui tam plaintiffs can recover a 25 – 30 percent share of the amount recovered, together with costs and attorneys’ fees. Fin. L. § 190(6)(b).

In this case, two private relator plaintiffs alleged that Starbucks failed to collect sales tax on warmed and “to-go” food items over a 10-year period. The relators filed a complaint, under seal, on or about June 11, 2015, with the New York Attorney General (AG). The AG declined to intervene. On June 30, 2017, the relators elected to proceed on their own with the lawsuit and filed a complaint seeking a judgment for at least $10 million in allegedly unpaid sales tax, as well as treble damages, civil penalties and attorneys’ fees. There was no allegation that Starbucks had failed to properly pay New York taxes that it had previously collected and was holding improperly. The relators’ allegations were solely based on their claim that Starbucks had under-collected sales tax from its New York customers.

On behalf of Starbucks, McDermott filed a motion to dismiss, arguing that Starbucks properly collects and pays its taxes to the State of New York and that Starbucks has consistently worked cooperatively with auditors from the New York State Department of Taxation and Finance. McDermott further argued that the relators “survey” of purchases at Starbucks locations and anecdotal conversations with Starbucks employees failed to properly allege that Starbucks violated the tax law or engaged in any fraud.

On November 10, 2017, the court held oral argument. On April 9, 2018, the Honorable James d’Auguste agreed with McDermott’s arguments and dismissed the case. See State of New York ex rel. James A. Hunter & Keenan D. Kmiec v. Starbucks Corporation, No. 101069/15, Dkt No. 40 (Sup Ct. April 9, 2018). The court held that the relators failed to properly allege that Starbucks had knowingly avoided or recklessly disregarded [...]

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