Down at National Harbor yesterday, one of the TIGTA Deputy IG’s, R. David Holmgren, gave us an overview of what TIGTA does. I asked him after the lecture why TIGTA didn’t deal with the unending stonewalling by the Whistleblower Office, which seems to spend its waking hours denying claims when they’re not claiming that they haven’t determined anything. I cannot disclose his reply, here or elsewhere, as I asked informally.
See my blogposts “The Whistleblower Blows It”, 6/20/11, and “Qui Tam?” 9/12/12. In the former, I commented upon the case of William Prentice Cooper, III, 136 T.C. 30, released 6/20/11. So does STJ Daniel A. (“Yuda”) Guy, Jr., in blowing up would-be whistleblower Roy J. Meidinger, Docket No. 16513-12W, in a designated hitter filed 8/30/13.
The usual story: Roy turns up alleged skullduggery, sluggery and thuggery at a 501(c)(3) and drops a Form 211 on Bullet Bob Gardner, the retiring chief of the Whistleblower Squad. Remember Bullet Bob and his skirmishes with would-be Whistleblower Joe Insinga? No? Then check out my blogpost “A Voyage Of Discovery”, 3/30/12.
Here’s STJ Yuda’s story: “The Whistleblower Office forwarded petitioner’s information to the IRS Exempt Organizations Division and the Large Business and International Division. After reviewing petitioner’s original information and supplemental information, the Commissioner prepared Form 11369, Confidential Evaluation Report on Claim for Award, explaining his decision not to proceed with an administrative or judicial action against the taxpayers in question. … Robert Gardner, the Program Manager for the Whistleblower Office, sent a letter to petitioner stating that the information he provided did not result in the collection of any proceeds, and, therefore, he was not eligible for an award under section 7623.” Order, p. 2.
Roy claims IRS abused its discretion, but IRS counters with the Cooper case–no money, no award.
Roy comes back, claiming he had a contract with the IRS, and cites the Tucker Act, 28 USC §1491(a), and demands specific performance and binding arbitration.
Of course, that argument bites the dust. Judge Yuda says that Section 7623 controls Whistleblowing, and doesn’t go into the statutory language that places jurisdiction over Tucker Act claims with the Court of Federal Claims or the USDCs, but leaves out Tax Court.
Not surprisingly, Roy’s demand for relief doesn’t even get the usual “we ain’t got no equitable jurisdiction”, and anyhow Tax Court couldn’t order binding arbitration even if they did have equitable jurisdiction.
So Roy is tossed. “It is well settled that the threshold for a whistleblower award is the Commissioner’s collection of proceeds upon which an award can be based. That threshold not having been crossed here, petitioner is entitled to no award. There is no genuine issue as to any material fact, and we will dispose of this case in respondent’s favor on the basis of Cooper v. Commissioner, 136 T.C. at 601.” Order, at p. 3. (Footnote omitted).
OK, so as far as Tax Court is concerned, once IRS says there’s no money, that ends the Whistleblower’s relationship with IRS. To quote Mr. Kipling, “If a year of life be lent her/If her temple’s shrine we enter/The door is shut/We may not look behind”.
Now lest I be misunderstood, I agree that the Courts’ role in reviewing administrative determinations by the Executive branch should be limited. We still have some vestige of a Constitutional separation of powers. There are places where courts cannot, and should not, go.
But the administrative agency here has its own check and balances, provided by the Legislative branch. There’s TIGTA, whose mission is “(T)o provide integrated audit, investigative, and inspection and evaluation services that promote economy, efficiency, and integrity in the administration of the internal revenue laws.”
Might could be y’all should take a look at how the Whistleblower Office is doing.