And So Didn’t IRS

By now everyone knows that Dave Gustafson (His Honor Judge David Gustafson) and The Great Dissenter, a/k/a The Judge Who Writes Like A Human Being, His Honor Mark V. Holmes, are two of my Tax Court faves.

So on another Palindrome Day (3/13/13), we have a designated hitter from Judge Dave that’s much more interesting than the three run-of-the-mill T. C. Memos with which the sages and sachems at 400 Second St NW have favored us this date.

I take my text from Sherlock Holmes at the racetrack: “Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

Well, neither did IRS do anything, whether by day or by night, according to Joseph A. Insinga, Docket No. 4609-12W, filed 3/13/13, a whistleblower wannabe who got neither a form letter, nor a check, nor anything else but the sound of silence.

Joe petitions Tax Court, saying he deems his Form 211 denied, as IRS has sat on it. IRS says “no determination, no jurisdiction”. Joe replies that “’his claims have, as a practical matter, been denied, and that he has therefore received a defacto rejection’.” Order, p. 1.

Joe has some firepower on call, as the National Whistleblower Center, “a non-profit, non-partisan organization dedicated to protecting employees’ lawful disclosure of waste, fraud, and abuse” (according to their website), files a brief amicus, claiming that “the Tax Court has jurisdiction–in light of §7623(b)(4) and under § 706(1) of the Administrative Procedures Act (“APA”), 5 U.S.C. § 551 et seq.–to “compel agency action unlawfully withheld or unreasonably delayed”. Order, p.1.

IRS ripostes that APA confers no jurisdiction, and the Mandamus Act (28 USC §1361) gives jurisdiction only to the USDCs, not Tax Court, and Dave agrees on both counts.

But, says Judge Dave, “the ‘All Writs Act’ (28 U.S.C. § 1651) applies to ‘all courts established by Act of Congress’ (cf 26 U.S.C. § 7441, establishing the U.S. Tax Court); and the U.S. Court of Appeals for the D.C. Circuit has held in Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984) (“TRAC”), that, in view of the APA and the All Writs Act, ‘it is clear–and no party disputes this point–that’ if a statute (there, 28 U.S.C. § 23421(1)) confers on a court exclusive jurisdiction to review a final agency order, then even before the final order has been issued, the court has ‘jurisdiction over claims of unreasonable [agency] delay’. (The D.C. Circuit would appear to be the default venue for any appeal in this case; see 26 U.S.C. § 7482(b)(1).).” Order, p. 2.

That’s tellin’ ‘em, Judge Dave.

But (yes, there’s another “but”) Tax Court never decided if TRAC applies to Tax Court; nor has Tax Court ever decided if they can “borrow” APA judicial review principles, and Judge Dave won’t do it here.

He rightly decides we don’t know enough. “…we ought first to determine whether petitioner may have in fact received a determination, as he contends he has. As we explained in Cooper v. Commissioner, 135 T.C. 70, 75 (2010), ‘the labeling [is] not dispositive’. Rather, what confers jurisdiction on this Court under section 7623(b) is a ‘determination regarding an award’. The statute does not explicitly require a ‘notice’ of a determination, nor a written determination, nor even any communication of a determination. Rather, we have jurisdiction if there has been ‘[a]ny determination regarding an award’. If the IRS has in fact finished its consideration of an award claim and has not made an award, then evidently it has ‘determined’ to conclude the matter administratively without granting an award. In order for us to decide whether (as petitioner contends) the IRS has made such a de facto determination, we may need to learn: whether the IRS has completed its consideration of petitioner’s claim; what, if anything, the IRS is still doing with regard to petitioner’s claim; and whether the IRS expects to do anything in the future with regard to petitioner’s claim. If there has been a cessation of administrative action, then a reviewable determination may have been effectively made thereby. Such questions can be explored at the hearing we will conduct.” Order, p. 2.

So let’s get everybody onto a phonecon, let them all tell Judge Dave their respective tales, and see if we can get everybody down to 400 Second St NW in June for a hearing.

Way to go, Judge Dave.