Attorney-at-Law

CONTRA PROFERENTEM

In Uncategorized on 10/02/2014 at 19:14

The old maxim from contracts (“documents are construed against the drafter”) applies to Whistleblower Office determinations, although Tax Court goes the long way round to get there, in Thomas M. Comparini and Vicki Comparini, 143 T. C. 14, filed 10//2/14.

Part of the difficulty is the two Murray S. Friedland cases. Remember Murray? Well, since his fifteen minutes of fame is long since over, check out my blogposts “Whistleblowers, Beware!”, 9/7/11 and “A Book and a Modest Proposal”, 5/22/12.

There’s much discussion in the concurring opinion about whether the majority has disapproved the results in the two Murrays, and whether the words “any determination” in Section 7623(b)(4) mean that a claimant can engage in continuous epistolary intercourse with the Ogden crew, and choose which letter they claim is a determination, and petition therefrom, defeating the 30-day SOL.

Of course, as Judge Colvin, writing for the majority, stresses (as if further stress were necessary) “It is well established that no particular words are required for our jurisdiction under sec. 7623(b)4). Cooper v. Commissioner, 135 T.C. 70, 75 (2010). … we do not mean to imply that any of the particular words in the … letter must be present in letters sent by the Whistleblower Office in other cases in order for this Court to have jurisdiction.” 143 T. C. 14, at p. 9, footnote 7.

Tom and Vicki sent IRS a Form 211. Ogden generously assigned four claim numbers, and sent Tom two letters and Vicki two letters. All four said “fuggedaboutit”, but also said if they had any questions, give us a call. And none ever used the magic word “determination”.

So Tom and Vicki sent some fresh documents, and IRS sent them one letter, relating to only one claim number, saying “our determination remains the same” and “we are closing our file”.

Tom and Vicki petition, timely for letter five, but too late for one through four. IRS moves to dismiss as untimely.

Well, letter five clearly states the administrative process is over, and Ogden made a determination.

What about letters one through four? In the first place, Tom and Vicki didn’t petition any one of the four, so whether or not they would have been determinations is not before the court.

But more to the point, “…we do not expect whistleblower award claimants to parse letters they receive from the Whistleblower Office to identify slight variations in those letters for clues as to whether the 30-day period to file a petition has commenced.” 143 T. C. 14, at p. 12.

So letter five is enough of “any determination” to confer jurisdiction on Tax Court. And the concurrers agree there’s jurisdiction, but try to keep the Friedland cases in the game.

I leave the jurisprudential argy-bargy to those turned on by that sort of thing.

But why get into the semantics of “any determination” in Section 7623(b)(4), or go into the Friedland morass? Both Friedland cases were Memos, not full-dress T.C.’s, so limit them to their specific facts. But the majority and the concurrers spend a lot of time deconstructing poor old Murray S.

Judge Colvin talks about how Ogden is trying to be nice to claimants, but that is a trap for the unwary.

While no specific form of determination is mandated by statute, or even that a determination need be written, shouldn’t whatever a notice says and however it may be given be unequivocal? Whistleblower notices of determination are rarely given to attorneys or USTCPs.

And Ogden drafted these letters. When I was studying law in the last millennium, I was taught that documents are construed against the drafter.

So I offer a humble suggestion to the Ogden Sunseteers: try this on for size.

“This letter is a determination as defined in 26USC§7623(b). This Office will not receive or consider any further communication from you, written, oral or electronic. If you disagree with this determination, your sole remedy is a petition to United States Tax Court as set forth in 26USC§7623(b)(4).”

Clear enough?

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