There’s a resounding “yes” from Judge Kroupa, in a full-dress T. C. and also in a T. C. Memo. These reprise the cases I cited in my blogpost “The Whistleblower Blown Up”, 5/20/14, about the two bullet-dodging whistleblowers who uncorked a tax evasion scheme that netted the Federals a cool $30 million.

The full-dress is Whistleblower 11332-13W, filed 6/4/14, and the T. C. Memo. is Whistleblower 10949-13W, 2014 T. C. Memo. 106, filed 6/4/14.

The story is almost identical for both, so I’ll cite to the full-dress.

Of course, the Whistleblowing Crew in Ogden, UT, generous to the last, gave the blower a discretionary award (amount not stated, but certainly less than the post-2006 15% to 30% payday), and now claims Tax Court has no jurisdiction, as the whistleblower began to blow pre-December 20, 2006, the magic day that the nondiscretionary award in Section 7623(b) descended from on high.

So Judge Kroupa begins the incantation: “The Tax Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent authorized by Congress. The Tax Court is without authority to enlarge upon that statutory grant. We nevertheless have jurisdiction to determine whether we have jurisdiction.” 142 T. C. 21, at p. 7 (Citations omitted, but they’re the usual).

Now while this may be a case of first instance for Tax Court, Judge Kroupa, unlike Starship Captain James T. Kirk, isn’t going where no one has gone before.

As usual in motions to dismiss, the plaintiff (petitioner-whistleblower) gets the benefit of the doubt. The question is: did s/he state facts upon which relief can be granted? It’s not “can s/he prove it?” That’s why we have trials. Tax Court has no specific rule as to deciding motions to dismiss, but the Federal Rules of Civil Procedure fill the gap nicely.

Judge Kroupa turns up the case of John Dacosta and N. B. Salty Miller, 82 Fed. Cl. 549 (2008). John and Salty blew the tax whistle to the tune of $2 million, so the bighearted guys in Ogden UT gave them each less than $140K and the thanks of a grateful government. But John and N. B. Salty said they gave the Federales information both pre-and-post 12/20/2006.

Judge Miller (Not Christine Odell, but George) said the guys made a good case, but Tax Court has exclusive jurisdiction, and since Tax Court isn’t an enumerated Court whence Ct. Cl. can transfer cases, he must dismiss, even though justice would be served by the transfer.

But Judge Kroupa takes up the sword dropped by John and N. B. Salty, and whacks the Ogdenites good. “Nevertheless, the Dacosta court’s analysis and rationale are persuasive. In Dacosta, as here, the claimants provided the Commissioner with information both before and after the enactment of TRHCA [Tax Relief and Health Care Act of 2006, the bestower of the 15%-30% largesse]. The Government moved to dismiss for lack of subject matter jurisdiction and argued that the information submitted by the claimants in 2007 was identical to the information submitted in 2003. The Government further argued that, even if claimants provided new and different information, the Commissioner did not proceed using the later application and documents. The court rejected the Government’s arguments and determined that the claimants alleged sufficient facts to avail themselves of section 7623(b)(1) for jurisdictional purposes. The court concluded that the claimants’ alleged facts, if proven at trial, would establish that the Commissioner acted on information provided by the claimants after the amendments to section 7623.” 142 T. C. 21, at pp. 13-14.

Despite the Ogdenite Pooh-Bahs’ claim that the post 12/20/2006 information was, in the words of the Master Savoyard, “merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative”, Whistleblower 11332-13W claims he gave the IRS and DOJ bushelbasketsful of other and further information, of which they were theretofore unaware, and fed them more goods than Deep Throat.

That’s enough. “We hold that the whistleblower satisfied the whistleblower’s pleading burden by alleging facts that respondent proceeded with an action against the targets using information brought to respondent’s attention by the whistleblower both before and after December 20, 2006. This is consistent with TRHCA’s intent to provide whistleblowers with judicial review of award determinations.” 142 T. C 21, at p. 12.

So Tax Court has jurisdiction. IRS’ motion to dismiss is dismissed. And it’s time for a trial.

Justice is done, for a change.