In Uncategorized on 07/25/2018 at 15:30

Judge David Gustafson is a source of conundrums (conundra?) that never fails. This is my third blogpost thereon, and I don’t doubt there will be others.

For the earlier ones, see my blogposts “Judge Gustafson’s Conundrums,” 6/2/15, and “Judge Gustafson’s Conundrums – Part Deux,” 11/10/15. And while you’re looking, check out “A Hotly Burning Question What Has Swept the Continent – Part Deux,” 2/8/17, as Elizabeth M. Jacobson features in this little puzzlement.

Who better to bring a first-class puzzler than Joseph A. (“Fighting Joe”) Insinga, Docket No. 16575-16W, filed 7/25/18?

Fighting Joe dropped a Form 211 on the Ogden Sunseteers, who blew him off. Joe petitioned. But now Fighting Joe wants to dismiss his own petition…without prejudice.

IRS objects.

To begin with, “’(T)he “Final Determination’ that the IRS’s Whistleblower Office (‘WBO’) issued to Mr. Insinga regarding his [target] claim (Doc. 1, petition Exhibit 1) is dated ‘July 18, 2106’– a date almost 80 years in the future. Neither party mentions this fact; but Mr. Insinga’s petition (at ¶ 2) implicitly admits that is a transposition of 2016; and the Commissioner likewise asserts that the date of the final determination is July 18, 2016; so we take that date as a given. (If either party attaches any significance or effect to the erroneous year date, it should so state in the filing it makes in response to this order.).” Order, at p. 1. (Emphasis by the Court)(Name omitted).

IRS objects because they want Fighting Joe to acknowledge that dismissal, per Jacobson (see above) must be with prejudice. After all, Fighting Joe had a thirty-day window to petition the blow-off, and that’s long gone. But Fighting Joe wants to fight again.

“The extent to which such a dismissal is with or without ‘prejudice’ is not completely articulated in Jacobson, where the motion to dismiss was unopposed, and the motion did not explicitly state whether the asked-for dismissal was to be with or without prejudice. The opinion does observe that the dismissal ‘leave[s the final determination] binding’, but it does not explicitly characterize the permissible dismissal as ‘with prejudice’. That phrase likewise does not appear in the subsequent order dismissing the case.” Order, at pp. 3-4.

So Judge Gustafson is in his element: a full-dress T. C. that seems to settle the issue, except it doesn’t.

And Judge Gustafson has as many hands as an octopus.

“On the one hand, it is clear that the dismissal of the Tax Court suit does (in the words of Jacobson) ‘leave binding on petitioner the [WBO’s July 2016] … determination to deny [his] claim for an award’ concerning [target]–but it is binding by virtue of Mr. Insinga’s inability to file another timely petition founded on that July 2016 determination. Since the time limit for filing a timely whistleblower petition is so very short–a mere 30 days–the claimant has only a very brief opportunity to file a timely petition. Because the WBO’s final determination on Mr. Insinga’s July 2016 claim was made almost 2 years ago, Mr. Insinga has no right to file another petition in our Court for review of that determination. If we grant his motion and dismiss this case, then it seems Mr. Insinga can never file another petition seeking a holding that the WBO abused its discretion in issuing its July 2016 final determination–even if we were to declare that the dismissal is ‘without prejudice’.” Order, at p. 4.

But whether dismissal here is with or without prejudice, Fighting Joe can always drop another 211 concerning target with Ogden, and if bounced, can petition. Of course, all he could do then is protest the latest bounce. But Section 7623(b)(4) says a blower can petition any determination, so even if this case is dismissed with prejudice, Fighting Joe can always start again.

IRS, what do you want to do? And Fighting Joe, what do you want?


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