Attorney-at-Law

LETTING ‘EM OFF EASY?

In Uncategorized on 10/26/2015 at 15:25

I am given to understand from commentators to this blog that the Ogden Sunseteers, more formally known as the Whistleblower Office, get every break when they come to Tax Court, and the whistleblowers get none.

The evidence to date is anecdotal, thus possibly not probative, but every so often a case arises that raises questions.

Here’s Whistleblower 8130-14W, filed 10/26/15, from Judge Kerrigan.

Blower wants info not in the admin file, namely and to wit, what happened in the two years between last exam of The Blown and the NOD from Ogden. Blower claims IRS continued investigating, notwithstanding claiming “case closed, no dough”, and dug up some cash from the Blown.

After the Branerton play-nice ends in stalemate, Blower seeks formal discovery.

IRS plays the Grecian Urn gambit: abuse of discretion, therefore admin file is “all ye know on earth and all ye need to know.”

But Judge Kerrigan isn’t so sure.

Judge Kerrigan: “Respondent’s response does include specific grounds for objection in relation to the information sought. Rather, he contends that the Court’s scope of review should be limited to the administrative record and the information that petitioner seeks is outside that record. Evidence related to whether there was a collection of proceeds and whether that collection was attributable to the whistleblower’s information should be part of the administrative record because it addresses the factual inquires section 7623(b) requires. See Whistleblower One 10683-13W v. Commissioner, 145 T.C. __, __ (slip op. at 6) (September 16, 2015).” Order, at pp. 1-2.

Judge, are you sure “Respondent’s response does include specific grounds for objection in relation to the information sought.”? Because if you read your next sentence, it seems that IRS’ response does not include specific grounds. If the response did include specific grounds, why didn’t you consider them?

All y’all must be familiar with Whistleblower One 10683-13W, natürlich? (Sorry, I’m writing this looking out my hotel room window at Cologne Cathedral.)

If not, check out my blogpost “The Flip Side,” 9/16/15, wherein Judge Halpern, writing for the Court, wrote thus: “Even were we to agree with respondent as to the scope of review, he cannot unilaterally decide what constitutes an administrative record. How could evidence related to whether there was a collection of proceeds and whether that collection was attributable to the whistleblower’s information not be part of any purported administrative record? Any such evidence goes to the very basic factual inquiries required by section 7623(b).” 145 T. C. 8, at p. 5-6.

Anyway, if the evidence Blower seeks should be part of the admin record, why not direct IRS to turn it over, or at least give it to the Judge for an in camera look-see? With all the good confidentiality protections Judge Halpern wrote back in September.

But all Blower gets is more play-nice. Judge Kerrigan orders (if that’s not too strong a word) “…that the parties shall convene to discuss the pending motions to compel in light of Whistleblower One 10683-13W v. Commissioner, 145 T.C. __ (September 16, 2015).” Order, at p. 2.

Oh yes, and file a joint status report in two weeks.

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