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In negotiating FCA or similar settlements with the government, one key consideration is the tax treatment of any payment. While not in the context of deductibility, the Supreme Court this year, inKokesh v. SEC, analyzed whether disgorgement in an SEC enforcement action was punitive or compensatory.
In negotiating False Claims Act (FCA) or similar settlements with the government, one key consideration is the tax treatment of any payment. While business expenses (including compensatory damages) may be deducted, deductions may not be taken for fines or penalties paid to the government for a legal violation or for payments made to the government to settle such potential liability. See 26 U.S.C. § 162(a), (f); 26 C.F.R. § 1.162-21. Taxpayers and the Internal Revenue Service (IRS) have litigated the deductibility of settlement payments, with courts adopting differing approaches to determine if a payment is punitive and thus a nondeductible penalty.
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By Steve Sozio, Rebecca Martin, Rajeev Muttreja and Mark Rotatori
With the federal government appropriating more than $2 trillion for businesses affected by the COVID-19 pandemic, plaintiffs’ lawyers, regulators and politicians have trumpeted the search for whistleblowers — many of whom will try to cash in on perceived fraud in the funding programs created by the CARES Act and other enactments.
By Carolyn H. Kendall
Compliance Programs Offer Companies an Opportunity to Mitigate Risk
This article outlines the principles of corporate criminal liability, including the factors prosecutors consider when making charging decisions, and the potentially available sanctions in light of applicable U.S. Sentencing Guidelines, and offers strategies for minimizing risk, including lessons from recent criminal enforcement actions.
By Daniel R. Alonso, Preston Burton and Meredith Leeson
IGs have been part of the federal landscape for more than 40 years, so why all the fuss now? The answer is that they are a key element of the government’s built-in mechanisms for protecting the nation’s public treasury, and a relief package of this scope strongly indicates that the IGs and the new oversight bodies will spend many years scrutinizing funds spent under it.
By Christopher M. Ferguson
This article discusses what tools the government has for pursuing seemingly undeserving PPP borrowers, the obstacles to bringing such cases, and the factors that may influence the government’s decision in pursuing criminal or civil cases.