GCA Title 5, Chapter 37
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CHAPTER 37
FALSE CLAIMS AND WHISTLEBLOWER ACT
SOURCE: Entire Chapter added by P.L. 34-116:XII:20 (Aug. 24, 2018). COMMENT: Various provisions of this chapter refer to the ‘Unified Judiciary of Guam’ in relation to jurisdiction over cases brought under this chapter. However, for clarification purposes, 7 GCA § 2101(a) states that ‘The Courts of justice of Guam shall consist of the Supreme Court of Guam and the Superior Court of Guam.’ Further, 7 GCA § 4101(a) specifically states: (a) The Superior Court of Guam is a court of general jurisdiction in Guam, having original jurisdiction as prescribed by this Title and in other laws of Guam which are not within the exclusive jurisdiction of the Supreme Court of Guam or the District Court of Guam. As a practical matter, it is not explicitly clear whether ‘jurisdiction over such matters cited in this Chapter’ lies with the Superior Court or the Supreme Court.
- Article 1. False Claims and Whistleblowing.
- Article 2. Civil Actions for False Claims and Whistleblowing.
- Article 3. False Claims and Whistleblowing Procedure.
- Article 4. Civil Investigative Demands.
ARTICLE 1 FALSE CLAIMS AND WHISTLEBLOWING
- § 37101. Definitions.
- § 37102. Liability for Certain Acts.
- § 37103. Whistleblower Awards to Individuals Who Report Underpayments of Taxes Levied Under the Laws of Guam.
- § 37104. Exemption from Disclosure.
- § 37105. Severability.
§ 37101. Definitions.
As used in this Chapter, unless the context in which they are used requires a different meaning, or unless a different definition is prescribed for a particular provision:
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(a) the term ‘claim’ (1) means any request or demand, whether under a contract or otherwise, for money or property and whether or not the government of Guam has title to the money or property, that: (A) is presented to an officer, employee, or agent of the government of Guam; or (B) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the government of Guam’s behalf or to advance a government of Guam program or interest, and if the government of Guam: (i) provides or has provided any portion of the money or property requested or demanded; or (ii) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and (2) does not include requests or demands for money or property that the government of Guam has paid to an individual as compensation for employment or as an income subsidy with no restrictions on that individual’s use of the money or property; (b) the terms ‘knowing’ and ‘knowingly’ (1) mean that a person, with respect to information: (A) has actual knowledge of the information; (B) acts in deliberate ignorance of the truth or falsity of the information; or (C) acts in reckless disregard of the truth or falsity of the information; and (2) require no proof of specific intent to defraud;
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(c) the term ‘material’ means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property; and (d) the term ‘obligation’ means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.
§ 37102. Liability for Certain Acts.
(a) Subject to Subsection (b) of this Section, any person who: (1) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; (3) conspires to commit a violation of items (1), (2), (4), (5), (6), or (7); (4) has possession, custody, or control of property or money used, or to be used, by the government of Guam and knowingly delivers, or causes to be delivered, less than all of that money or property; (5) is authorized to make or deliver a document certifying receipt of property used, or to be used, by the government of Guam and, intending to defraud the government of Guam, makes or delivers the receipt without completely knowing that the information on the receipt is true; (6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the government of Guam, who lawfully may not sell or pledge property; or (7) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to
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pay or transmit money or property to the government of Guam, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the government of Guam, is liable to the government of Guam for a civil penalty of not less than Five Thousand Dollars (10,000), plus three (3) times the amount of damages which the government of Guam sustains because of the act of that person. (b) Reduced Damages. If the court finds that: (1) the person committing the violation of this Section furnished officials of Guam responsible for investigating false claims violations with all information known to such person about the violation within thirty (30) days after the date on which the defendant first obtained the information; (2) such person fully cooperated with any government of Guam investigation of such violation; and (3) at the time such person furnished the government of Guam with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this title with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation, the court may assess not less than two (2) times the amount of damages which the government sustains because of the act of that person. (c) Costs of Civil Actions. A person violating this Chapter shall also be liable to the government of Guam for the costs of a civil action brought to recover any such penalty or damages. (d) Jurisdiction. The Unified Judiciary of Guam shall have jurisdiction over such matters cited in this Chapter.
§ 37103. Whistleblower Awards to Individuals Who Report Underpayments of Taxes Levied Under the Laws of Guam.
(a) The Director of Revenue and Taxation, under regulations prescribed by the Director, is authorized to pay, from the monies appropriated to the Department of Revenue and
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Taxation in any fiscal year, such sums as he deems necessary for: (1) detecting underpayments of tax levied under the laws enacted in Guam, or (2) detecting and bringing to trial and punishment persons guilty of violating the tax laws enacted in Guam or conniving at the same, in cases where such expenses are not otherwise provided for by law. Any amount payable under the preceding sentence shall be paid from the proceeds of amounts collected by reason of the information provided, and any amount so collected shall be available for such payments. (b) Awards to Whistleblowers. (1) If the Director proceeds with any administrative or judicial action described in Subsection (a) based on information brought to the Director’s attention by an individual, such individual shall, subject to Paragraph (2), receive as an award at least fifteen percent (15%), but not more than thirty percent (30%), of the collected proceeds (including penalties, interest, additions to tax, and additional amounts) resulting from the action (including any related actions) or from any settlement in response to such action. The determination of the amount of such award by the Tax Enforcement Division of the Department of Revenue and Taxation shall depend upon the extent to which the individual substantially contributed to such action within the ranges as prescribed in this Section. (2) Award in Case of Less Substantial Contribution. (A) In the event the action described in Paragraph (1) is one which the Tax Enforcement Division determines to be based principally on disclosures of specific allegations (other than information provided by the individual described in Paragraph (1)) resulting from a judicial or administrative hearing, from a governmental report, hearing, audit, or investigation, or from the news media, the Tax Enforcement Division may award such sums as it considers appropriate, but
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in no case more than ten percent (10%) of the collected proceeds (including penalties, interest, additions to tax, and additional amounts) resulting from the action (including any related actions) or from any settlement in response to such action, taking into account the significance of the individual’s information and the role of such individual and any legal representative of such individual in contributing to such action. (B) Nonapplication of Paragraph Where Individual is Original Source of Information. Subparagraph (A) shall not apply if the information resulting in the initiation of the action described in Paragraph (1) was originally provided by the individual described in Paragraph (1). (3) Reduction in or Denial of Award. If the Tax Enforcement Division determines that the claim for an award under Paragraph (1) or (2) is brought by an individual who planned and initiated the actions that led to the underpayment of tax or actions described in Subsection (a)(2), then the Tax Enforcement Division may appropriately reduce such award. If such individual is convicted of criminal conduct arising from the role described in the preceding sentence, the Tax Enforcement Division shall deny any award. (4) Appeal of Award Determination. Any determination regarding an award under Paragraph (1), (2), or (3) may, within thirty (30) days of such determination, be appealed to the Unified Judiciary of Guam (and the Unified Judiciary of Guam shall have jurisdiction with respect to such matter). (5) Application of this Subsection. This Subsection shall apply with respect to any action: (A) against any taxpayer, but in the case of any individual, only if such individual’s gross income exceeds Two Hundred Thousand Dollars ($200,000) for any taxable year subject to such action, and
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(B) if the tax, penalties, interest, additions to tax, and additional amounts in dispute exceed Two Million Dollars ($2,000,000). (6) Additional rules. (A) No Contract Necessary. No contract with the Department of Revenue and Taxation is necessary for any individual to receive an award under this Subsection. (B) Representation. Any individual described in Paragraph (1) or (2) may be represented by counsel. (C) Submission of Information. No award may be made under this Subsection based on information submitted to the Director unless such information is submitted under penalty of perjury. (7) If the government of Guam elects not to proceed with the action pursuant to § 37203(c) of this Chapter, the Tax Enforcement Division shall award not less than thirty percent (30%) of the collected proceeds (including penalties, interest, additions to tax, and additional amounts) resulting from the action (including any related actions) or from any settlement in response to such action. Such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
§ 37104. Exemption from Disclosure.
Any information furnished pursuant to §§ 37102(b) and 37103 shall be exempt from disclosure under Chapter 10 of Title 5, Guam Code Annotated.
§ 37105. Severability.
If any provision of this Chapter or its application to any person or circumstance is found to be invalid, or contrary to law, such invalidity shall not affect other provisions or applications of this Chapter which can be given effect without such invalid
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provision or application, and to this end the provisions of this Chapter are severable.
ARTICLE 2
CIVIL ACTIONS FOR FALSE CLAIMS AND WHISTLEBLOWING
§ 37201. Responsibilities of the Attorney General.
- § 37202. Actions by Private Persons.
- § 37203. Right of the Parties to Qui Tam Actions.
- § 37204. Award to Qui Tam Plaintiff.
- § 37205. Certain Actions Barred.
- § 37206. Government of Guam Not Liable for Certain Expenses.
- § 37207. Fees and Expenses to Prevailing Defendant.
- § 37208. Relief from Retaliatory Actions
§ 37201. Responsibilities of the Attorney General.
The Attorney General shall diligently investigate a violation under §§ 37102 and 37103. If the Attorney General finds that a person has violated or is violating §§ 37102 or 37103, the Attorney General may bring a civil action under this Section against the person.
§ 37202. Actions by Private Persons.
(a) A person may bring a civil action for a violation of §§ 37102 and 37103 for the person and for the government of Guam. (1) The action shall be brought in the name of the government. (2) The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting. (b) A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the government of Guam, to include
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the Attorney General’s Office and the Tax Commissioner, for violations of § 37103. (1) The complaint shall be filed in camera, shall remain under seal for at least sixty (60) days, and shall not be served on the defendant until the court so orders. (2) The gove