The Taxgirl And The Lerner Rule

iStock_Hand On BibleXSmallAs Second IRS Official Pleads The Fifth, Congress Pushes For “Lerner Rule”.

Greg Roseman, a Deputy Director at the Internal Revenue Service, didn’t make any friends on the Hill last month when he refused to testify at a House Oversight Committee hearing. It was the second time in recent memory that an Internal Revenue Service employee had invoked a Fifth Amendment right not to testify.

Roseman follows hot on the heels of Lois Lerner’s invocation of the Fifth Amendment a month earlier in the wake of the IRS tax exempt scandal. Roseman, like Lerner, is still employed by the IRS. It’s important to note, however, that Roseman’s testimony was solicited as part of an ongoing investigation about his relationship with a contractor who won big dollar federal contracts. The testimony was not related to the tax exempt scandal – though the timing is close enough that it has cast a dark shadow over the already beleaguered agency.

Kelly Erb, as The Taxgirl, has published a blog speaking about the “Lerner Rule” which would handle federal employees testifying before a congressional hearing.The bill, H.R. 2458, has been referred to the House Committee on Oversight and Government Reform. The text of the bill is pretty short and to the point. It says:


Any Federal employee who refuses to answer questions in a congressional hearing after being granted immunity shall be terminated from employment.


Any Federal employee who, in a congressional hearing, refuses to answer questions specifically, directly, and narrowly relating to the official duties of such employee, without being required to waive immunity with respect to the use of answers or the fruits thereof in a criminal prosecution of such employee, shall be terminated from employment.


If three-fourths of the congressional body to whom the testimony was given finds that a Federal employee willfully or knowingly gave false testimony in a congressional hearing, then such employee shall be terminated from employment.

The Taxgirl seems to think this strips away constitutional rights from federal employees and this could then be extended to anyone. I am not sure of The Taxgirl’s background but most of my career I have been an “at will” employee, which basically means my employer could terminate me whenever they wanted. If they don’t like the way I answer a question, they can terminate me. If they don’t like the color shirt I wear, they can terminate me.

When I was an executive, reporting to a board of directors, if the board of directors felt my actions, activities, or answers were less than forthright I could be terminated. It was a foregone conclusion if it were found that I willfully or knowingly gave false information to the board I could be terminated. I could choose not to answer a question as long as I was willing to accept the possible consequences of doing that… being terminated.

The “Lerner Rule” does nothing more than make it explicit that a federal employee is expected to be held to the same standard, i.e., if your employer (the federal government, whether the legislative branch, executive branch, or legal branch), asks you a question about your work, work situation,  or work related activities you can chose to answer, honestly and completely or risk being terminated for failing to do so. I really do not see that different from the rest of us. The “Lerner Law” is an employer/employee relationship. It is not the same as “Journalists, the New York Mets, plumbers” testifying before congress.  Congress is not their employer.

An Enrolled Agent and U.S. Tax Court Practitioner, I represent taxpayers in front of the IRS and the U.S. Tax Court on self-prepared tax returns and tax returns prepared by other tax preparers. I handle CDP hearings, collection cases and contested issues in IRS audits. With more than three decades of experience working with small individual returns to large, multi-company and multinational companies returns I have a broad breadth of experience and am in the position to help you.

As an Approved Continuing Education Provider, I am available to speak to organizations throughout the United States on Tax and Tax Research issues.

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2 comments on “The Taxgirl And The Lerner Rule

  • However, the Congress is NOT the employer of any of the employees in question. Nor are they the Judicial branch. I think it’s entirely appropriate for Federal employees to refuse to testify unless they are guaranteed their statements cannot be used later in court proceedings. It’s a little different within a private company, as they wouldn’t be public hearings.

    • When someone works for the U.S. Government “the People” of the United States are their employers, and the representatives of “the People” (imperfect as they are in that capacity) is “The Congress”. The proposed law – in my view – is fair and appropriate, and if it passes with the Chief Execs signature (or despite his veto) then either way, it strengthens Congress’ oversight role. For the People of the United States, imho, that’s a good thing.

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