Or, IRS Blows a Remand

All y’all will recall Elizabeth M. Jacobson bailing from a whistleblower petition. OK, you don’t; it’s a Friday in summer time and all y’all want to head for a Gulf-and-Tango-with-a-twist. So check out my blogpost “A Hotly-Burning Question What Has Swept The Continent – Part Deux,” 2/8/17.

So one can bail. But what about a remand in a blower case? Even though ex-Chief Whistler Steven Whitlock has gone off to OPR, the Ogden Sunseteers are still fumbling in the backfield.

Here’s the story of Stanley H. (“Stan the Man”) Epstein, Docket No. 28731-15W, filed 7/28/17, as told by Judge Lauber, who loves conundra like these.

To begin with the obvious, Stan the Man dropped a Form 211 on the Ogden Sunseteers and got bounced. So Stan the Man petitions.

Take it away, Judge Lauber!

“…the parties filed a joint Motion to Remand in which they represented that respondent’s Whistleblower Office (Office) had reconsidered its determination as to whether petitioner is entitled to an award. In light of that development, the parties submitted that ‘[j]ustice would be served by reopening petitioner’s claim.’ … the Court continued the case; held the Motion to Remand in abeyance; and directed the parties to work toward possible resolution of the case.

“… respondent filed a Status Report in which he indicates that the Office is prepared to make a revised determination regarding petitioner’s claim and is prepared to issue a new final determination letter. Respondent asked that the Court grant the Motion to Remand as a prelude to the Office’s taking that step. …petitioner advised the Court of his position that a remand is unnecessary; that it would needlessly delay the case; and that the Court should simply direct respondent to issue a new determination letter. On this point we agree with petitioner.” Order, at p. 1.

The usual story is where there’s a trial de novo there’s no reason to remand; it’ll all come out in the Glasshouse wash. But where there’s a question of abuse of discretion, there can be a remand if the administrative record is ratty or circumstances have drastically changed. I’ve blogged those cases.

Besides, once Tax Court gets jurisdiction, they keep it, even when the Ogden Sunseteers admit their first shootdown was a miscue. Remember Mica Ringo and the Incomparable Comparinis, whose set-tos with the Ogden Sunseteers have been exhaustively chronicled in this my blog.

So what’s the big question? “In deciding whether remand would be appropriate in whistleblower cases, one relevant question would be the appropriate standard of review, that is, whether the matter we are asked to address is subject to de novo review or review for abuse of discretion. This Court has not yet decided the appropriate standard of review of a final IRS determination in a whistleblower case.” Order, at p. 2.

I make abuse of discretion 8 to 5 in the morning line. But Judge Lauber gets shifty.

“Because we believe that a remand of this case would serve no useful purpose, we deem it unnecessary to decide these questions of first impression here.” Order, at p. 2.

The Ogden Sunseteers say they’ll issue a new letter. Stan the Man, like the famous sneaker, says “Just Do It.” Judge Lauber has jurisdiction to review any “determination” the Sunseteers disgorge.

So why remand? Or decide if this is a case for remand? Or determine the standard of review that would permit a remand?

Go send the new final determination letter (hopefully appropriately labeled as such). If it solves everybody’s problems, great, send in a stipulated decision; if not, Judge Lauber is holding short of takeoff and can rev up the judicial engines.

Of course, nothing herein contained precludes a remand in the right case.