For the Record Off the Record

By David Travis, President

NTEU has been told that some managers have deliberately stopped sending information and instructions to their employees by e-mail because they have been held accountable for what they told their employees.  Did I say that in a way that makes sense?  Let me try to be really clear.  Some managers have communicated with their employees by e-mail.  Part of what they told the employees was wrong.  When they were called on their bad instructions, the e-mails were used to prove that the information was wrong.

There are several ways that those managers could have responded.  The way NTEU would have liked them to respond would be to recognize that they were wrong, and to make every effort to be right from then on.  Umm, okay. 

Some managers have responded to being caught in mistakes by refusing to put anything in writing so that nothing can be traced back to them.  The employees assigned to those managers are given instructions verbally, and then are held accountable for orders that they can’t prove they received.  The managers who practice this kind of hide-and-seek oversight are then in a position to claim that the employees either weren’t listening or are acting improperly on purpose.

This is NTEU’s position:  if a person aspires to management, that person should aspire to applying the principles of leadership, of fairness, of integrity.  A great part of integrity is being accountable for your actions and for the actions of those you direct.  A manager who cloaks his or her directions in untraceable terms so that he or she can’t be called to account for them is obviously unsure of whatever it is he or she is hiding.  In really blunt terms, that person is unfit to manage employees because the unfortunate employees are placed at risk because of the manager’s self-serving obfuscation.

But NTEU is not preparing this communication to just point fingers and call names.  Our intention is to give those whom we represent advice in protecting themselves from those sub rosa managers.

Very simply, we suggest that if you have one of these managers, you should first ask for written clarification of confusing or questionable directions from your manager.  If he or she refuses to state for the record whatever it is that he or she is telling you, then we suggest that you e-mail the manager and state something to the effect: “My understanding of what you told me to do is xxxxxxxxxxxxxxx. If my interpretation is incorrect, please clarify it.”  If you still do not receive satisfactory direction, then we suggest that you prepare a memo or a note for yourself stating what the directions you received were, and what you did to try and clarify them.

Oh yes, and please let NTEU know what is happening so that we can attempt to resolve the situation for you.

Dear Management

David Travis

President, NTEU Chapter 72

I received an envelope in my mail box at home that bore a return address from the IRS, my employer and yours.  My first involuntary thought was, “Are they coming after me now?”  I looked closely at the return address and saw that it was not from the Employee Tax Compliance (ETC) unit in Cincinnati.  I knew, by virtue of my experience as a union steward, that if it were a TIGTA contact, it would not be made by mail; TIGTA would simply tell my manager that they wanted to see me, and I would be told when to report.  I opened it and saw that it was just a “Congratulations on reaching geezerhood – You need to attend a retirement seminar” message.  Then I thought, “How shameful is it that a person with years of loyal, professional service to this agency and ultimately to the United States of America, and with twenty-one years of uniformed military service, would see a return address from his employer and immediately feel a wave of trepidation.

Because of my years as a union steward, I know better than most what our rights are, what the rules are that the agency is supposed to follow, what protections we federal employees have from unfair, unreasonable prosecution and persecution.

Because of my years as a union steward, I know better than most how our rights are violated, how the safeguards of due process are twisted or ignored, what we, as federal employees have to fear from our employer, who all too often is unfair and unreasonable.

One of the most common inquisitions that we face has to do with our taxes.  To begin with, have you considered – do you even know – that each of our tax returns is “reviewed” each year by a special unit in Cincinnati called the Employee Tax Compliance unit (ETC)?  How can it be constitutional for one group, us, to be singled out for unceasing scrutiny by a unit that exists for the sole purpose of catching employees making mistakes on their tax returns when every other citizen of the United States is protected from that kind of persecution?

How can it be constitutional for that group to be held to a higher standard than any other citizen of the United States, including those who wrote the law that imposes this double standard upon us?  They say that it is because we, as IRS employees, must “set an example,” yet even they have no right to expose our tax data to the public.  How then are we setting an example, and for whom? 

You should know that two of the “ten deadly sins” of Section 1203 (b) of the Restructuring and Reform Act of 1998 speak directly to us and our taxes.  1203(b)(8) is willful late filing of one’s tax return.  1203(b)(9) is willful understatement of federal tax liability.

And that case was closed immediately. In the third case, an employee who is a degreed accountant simply put forth the facts and, to my utter amazement, ETC closed the case.

On the same day a couple of years ago, I spoke with two employees who had received letters from ETC. 

The first was an employee of some forty years whose first remark to me was, “Are they going to take my retirement away from me?”  That employee had paid a CPA to prepare the tax return.  When I started here some years back, my class was taught, “When you see a return that was prepared by a CPA, you better realize that that CPA knows more than you do.”  In this case, the employee’s CPA had supplied a statement to the employee admitting that he, the CPA, had made an error that resulted in a higher tax liability.  The CPA had caught the mistake before Underreporter ever did, and prepared a 1040X, an Amended Return.  The CPA even paid the penalty and interest because it was his mistake.

The second employee had a similar situation.  That employee had inherited a trust fund from the estate of a family member.  The CPA who prepared the return, as did the first one, made a mistake and provided the employee with a statement admitting it.  That employee too asked me if the situation would result in termination (even though the employee had done nothing whatsoever wrong).

Both employees’ statements and the accompanying CPAs’ statements were sent off to ETC.  Again on the same day, a few weeks later, both employees came to see me.  Each had received a response from ETC.  Both responses were that the cases were referred to management for possible Removal or other Adverse Action.

For what it is worth, the manager of one of the employees had the integrity and common sense to inform the employee that it would go no further; the case was closed.  The other is still being forced through hoops for some unfathomable reason.

It is shocking how often employees come to the union office for help with a “tax case” that should be no case at all.  One of the most common scenarios we see results from some discrepancy stemming from the spouse of an employee.  Let me say, very pointedly, that there are now very few financial penalties for a married couple to file separately.

If you are employed at the IRS, it is pitiable but evident that you must do everything possible to protect yourself.  If you are married, I suggest that you seriously study the effect of filing your taxes in Filing Status 3 – Married Filing Separately.  It might save you serious difficulties down the line.

Remember too that the act of paying a professional to prepare your taxes is no defense.  The IRS position is that we are responsible for whatever is on our returns, whether we understand it or not.

Perhaps you wondered, when you saw the heading of this piece that says “Dear Management,” just what that means.  I would like to say to the powers that be, “Dear Management, you should be ashamed.  You have fostered a climate of fear where dedicated, professional employees who year-after-year deliver loyalty and integrity to you receive in exchange suspicion, distrust, and an ominous shadow on the wall of an axe on the downswing. How can you be so heartless, so cruel?” Yes, I know that there are plenty of managers out there who do not deserve the contempt I am offering here, but it is patently obvious that there are not enough of them in high enough places to dispel the dread that is felt by far too many.

Some of our managers have as much fear as any employee.  I recall a manager who was a personal friend of mine for several years prior to becoming a first-line manager.  When I was representing an employee in that new manager’s workgroup, the manager refused to provide copies of the employee’s Forms 3081, first to the employee, then to me, the designated representative.  The manager squeaked, “I want to keep my job.”  I next went to the Department Manager for the 3081’s and was told that they would not be provided because, in essence, Labor Relations had said not to.  I doubt that Labor Relations had prohibited the provision of 3081’s, but the Department Manager interpreted a denial of an Information request to mean that nothing whatsoever should be given to the employee or to me, and the Department Manager was apparently afraid to ask.

Perhaps one day the persons whom we elect to the Congress and the White House will appreciate the federal employee workforce.  Perhaps one day the management of our agency will appreciate that almost all of us came here to do an honest day’s work for an honest day’s pay, that we value our integrity, and that we are no worse – maybe not even as bad – as the rest of the citizenry of the United States of America.  Perhaps one day we can even expect fairness from our agency and our government.

Until then, protect yourself.  When you can’t protect yourself, let us help you.  Until then, Dear Management, you should be ashamed.

Check Up Before You Pay Up

It happens all the time.  One of us gets a notice from our employer saying that there is a discrepancy on a tax return, and there is a dollar figure at the bottom of the letter.

We all know (at least we all SHOULD know) that as IRS employees we are held to a different standard that anyone else in the United States.  We can lose our jobs for making a mistake on our annual income tax returns. 

Put the two factors together:  you are an IRS employee and you just received a bill for last year’s taxes.  What are you going to do?  The answer for many of us is fast and facile – we are going to pay.  Get them off our back, right?  Unfortunately, nope.

The letter you receive is the same letter that any citizen would get, and it is usually an inquiry, not a statement of tax due.  You have every right to verify and question it.  If you really do owe the money, then it would be a good idea to pay.  But does that satisfy our employer?  Not by a long shot!  THAT letter will come from Cincinnati later.  And guess what?  By paying so quickly when you first heard from the IRS, you’ve made yourself look guilty whether you were or not.

We represent employees all the time in tax cases.  Believe me when I say that it rings a little hollow to say over and over, “the employee only paid for fear of being fired.”  But we have to say that because it’s true.

I am certainly not telling you not to pay.  If you owe, by all means pay, and do it as soon as you can.  It shows good faith and effort when you’ve settled up.  What I am telling you is to check it out before sending off a check in terror of losing your livelihood.  Talk to a tax professional.  Talk to somebody.  You can even talk to us.  I have to say though, that we may have to advise you to see a tax pro.  Some of us are tax examiners and are therefore fairly knowledgeable, but it is not our role to give you advice on taxes.  We can’t afford to put either you or ourselves at risk.

Let me give you one happy example.  Last summer an employee got the dreaded letter.  The employee’s response was to immediately send off a check for about $1400.00.  Then in the fall, the letter from Cincinnati came.  We looked at all of the material and determined that it was a mistake to have paid, because the employee did not owe one cent of that money.  I assume that the employee went to a tax professional and got outside verification of that. We represented the employee; it was a 1203(b) case.  We prevailed and the employee will receive the $1400.00 back, but it would have been so much better

And so much less stressful for the employee if some advice had been obtained first and the tax issue was shown to be erroneous from the start.

My advice is that if you receive a notice from our employer, make sure you owe before you pay.  Then when you get the inevitable letter from Cincinnati, you – and we – will be much better prepared to deal with it.  Remember that you can call the union office at 460-7085 for assistance whether or not you are in work status

Outstanding Ratings

Each year when it is time for cash awards to be distributed, there is some confusion as to what constitutes an outstanding rating and whether some individuals were properly awarded if at all.

First, the IRS/NTEU National Performance Awards Agreement (NPAA) clearly states that any employee rated “outstanding” will receive an award. 

The next issue is to define “outstanding.”  That definition is found on page 35 of the National Agreement.  It says: 

          “Outstanding:  employee is rated Outstanding in more than half (1/2) of the critical job elements and Exceeds Fully Successful in the other critical job elements.”

You should know that a critical job element score of 5 is Outstanding.  A score of 4 is Exceeds Fully Successful.  Fully Successful is represented by a score of 3 while a 2 score is Minimally Successful.  Any 1 in a critical job element is Unacceptable.

If you add the critical job element scores together and divide them by the number of critical job elements, the result is the critical job element score.  There usually are five scores.  Someone whose scores were all 5’s would determine his or her critical job element score like this:  5+5+5+5+5 = 25/ 5=5.  If that person had one score of 4, it would be 5+5+5+4+5=24/5=4.8.

Someone with three 5’s and two 4’s is still, by definition, “Outstanding.”  His or her critical job element score would be 5+5+5+4+4=23/5=4.6.

An employee whose critical job element scores were 5+5+3+5+5=23/5=4.6 is not “Outstanding.”  Why?  Because the score of 3 fails the definition of “Outstanding” found in the National Agreement.  Recall that it says more than half of the critical job element scores must be Outstanding, but the other scores must be Exceeds Fully Successful.