Attorney-at-Law

“A HOTLY BURNING QUESTION WHAT HAS SWEPT THE CONTINENT” – PART DEUX

In Uncategorized on 02/08/2017 at 16:36

Surely many of my readers, that small but mighty band, have been spending their leisure time agonizing over whether Elizabeth M. Jacobson can withdraw her petition from the NOD that scuttled her whistleblowing claim.

For any among you who had gotten a life instead, see my blogpost “A Blown Dismissal,” 11/29/16.

You now remember that Judge Lauber analogized whistleblowing to CDP-ing, and thought that since Wagner permitted lienees or levitated ones to withdraw their petitions, as there was no Section 7459 automatic decision for IRS except in a deficiency case, whistleblowers could do likewise.

But he wasn’t sure.

So, after having checked around with the Glasshouse Gang at 400 Second Street, NW, we get a unanimous full-dress T. C., namely and to wit, Elizabeth M. Jacobson, 148 T. C. 4, filed 2/8/17.

At Judge Lauber’s request, IRS filed a full response to Elizabeth’s motion. IRS had simply theretofore stated they didn’t object.

Surprise, surprise, IRS’ counsel finds the Wagner analogy apposite. And Judge Lauber does too.

“In the absence of any statutory requirement that we enter a decision consistent with an antecedent notice of deficiency, we looked to rule 41(a)(2) of the Federal Rules of Civil Procedure (Civil Rules), which permits dismissal in the sound discretion of the court.  The case law under Civil Rule 41(a)(2) indicated that a court should grant dismissal ‘unless the defendant will suffer clear legal prejudice.’  Wagner, 118 T.C. at 333 (quoting McCants v. Ford Motor Co., 781 F.2d 855, 856-857 (11th Cir. 1986)).” 148 T. C. 4, at p. 4.

So after all this wind-up, here comes the baseball.

“Section 7459(d), requiring entry of a decision in deficiency cases, likewise does not apply here.  Section 7623(b)(4), which grants this Court exclusive jurisdiction to review IRS determinations regarding whistleblower awards, provides that any appeal must be filed ‘within 30 days of such determination.’  Because the Office’s final determination on her claim was made 19 months ago, petitioner has no right to file another petition in our Court for review of that determination or ‘to file an appeal in the United States District Court or anywhere else.’  Dismissal of the instant case will thus leave binding on petitioner the IRS’…determination to deny her claim for an award.  ‘[I]n the exercise of the Court’s discretion, and after weighing the relevant equities including the lack of a clear legal prejudice to respondent,’ we will accordingly grant petitioner’s motion to dismiss.  Wagner, 118 T.C. at 334. “ 148 T. C. 4, at pp. 5-6.

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