Attorney-at-Law

OH, THOSE LETTERS! – PART DEUX

In Uncategorized on 03/27/2019 at 18:45

Even that delightful luncheon companion, Chief Whistler Lee D. Marvin, seems unable to quench the Ogden Sunseteers’ Protean metaphysical urge to engage in epistolary ping-pong. And even when IRS’ counsel tries invoking untimely petitioning, the Ogden crew get railroaded back before Judge Albert G (“Scholar Al”) Lauber. Here’s Whistleblower 15488-17W, 2019 T. C. Memo. 23, filed 3/27/19.

Way back in September ’16, the Ogden crew gave 15488-17W the toss. “The Office told petitioner that his claim had been denied and stated: ‘This letter is a final determination for purposes of filing a petition with the United States Tax Court.  Under I.R.C. § 7623(b)(4), you have 30 days from this determination to file a petition with the Tax Court.’  Petitioner did not petition this Court within 30 days of the first letter.” 2019 T. C. Memo. 23, at p. 3

Nothing daunted, 15488-17W visited EDGAR, SEC’s on-line tell-all, and found that, around the same time the Ogdens were brushing him [Note: Judge Lauber says “him,” from which locution no inference should be drawn as to blower’s identity] off,  the blowee had filed a bunch of amended returns and dropped a cool $50 million on the fisc. And blowee’s filings said the story wasn’t over yet.

15488-17W leapt into print, and engaged the Ogdens again in epistolary discourse. The Ogdens replied they saw no need to change their prior, final brush-off, and didn’t even mention the new info.

15488-17W petitions that.

IRS says “too late, final determination long past.” Well, the Incomparable Comparinis taught us long ago that, in the immortal words of The Great Eight Behind the Plate, Lawrence Paul Berra, “It ain’t over till it’s over.” You remember the Comparinis. No? See my blogpost “Contra Proferentem,” 10/2/14.

Judge Scholar Al canvasses the letter-writing barrages of the great whistlers of the recent past.

“Our jurisdiction to review a ‘determination regarding an award’ does not depend on how the document is labeled.  See Comparini, 143 T.C. at 278, 281, 283; Cooper v. Commissioner, 135 T.C. 70, 75 (2010) (‘[T]he name or label of a document does not control whether the document constitutes a determination.’). The Office may issue multiple appealable ‘determinations’ with respect to a single matter.  See Myers v. Commissioner, 148 T.C. 438, 444 (2017) (‘[T]he Whistleblower Office may issue multiple determinations, on any of which our jurisdiction* * * may be based.”); Comparini, 143 T.C. at 283; sec. 301.7623-4(d)(2), Proced. & Admin. Regs.  Thus, the fact that the first letter was titled a ‘final determination’ did not prevent the Office from issuing a subsequent determination regarding petitioner’s claim that would create jurisdiction in this Court.  See sec. 7623(b)(4) (granting this Court jurisdiction over ‘[a]ny determination regarding an award’); Kasper v. Commissioner (Kasper II), 150 T.C. 8, 13 n.6 (2018) (‘[W]e have jurisdiction over any timely petitioned whistleblower determination, not just the first in time.’); Comparini, 143 T.C. at 281-283.” 2019 T. C. Memo. 23, at pp. 6-7.

As for Myers, see my blogpost “Forms and Letters,” 6/5/17. I’ve blogged Kasper too many times to count.

Well, 15488-17W found new evidence that something had induced blowee to drop $50 million into IRS’ lap, and reboot a bunch of returns. Just maybe so it was what he told IRS that triggered the drop and reboot. And the second letter, coming when it did, shows the Sunseteers knew what had happened after 15488-17W told them.

Anyway, he’ll get the chance to show it.

“In sum, under the principles enunciated in Comparini and Myers, we conclude that the Office’s second letter constituted a ‘determination regarding an award’ sufficient to confer jurisdiction upon this Court.  We have no occasion here to consider the outer limits of our jurisdiction over whistleblower cases because the Office’s second letter fell squarely within the universe of communications that we have previously held to constitute ‘determinations.’  Petitioner supplied new information, not available to him when the Office initially denied his claim, that arguably called into question the basis the Office had enunciated for denying his claim.  By dismissing the relevance of that new information, the Office made a determination regarding his claim.  He is entitled to seek judicial review of that determination.” 2019 T. C. Memo. 23, at p. 11, footnote omitted.

But the footnote shows how the Ogden Sunseteers were railroaded.

“This conclusion derives support from a recent opinion of the U.S. Court of Appeals for the D.C. Circuit, to which our whistleblower cases are normally appealable.  See sec. 7482(b)(1) (penultimate sentence); Kasper II, 150 T.C. at 11 n.1 (slip op. at 6 n.1).  In Stovic v. R.R. Ret. Bd., 826 F.3d 500, 502 (D.C. Cir. 2016), that court held that the Railroad Retirement Board’s denial of a request to review a previously denied claim for benefits was a ‘final decision of the Board’ subject to judicial review under 45 U.S.C. sec. 355(f) (2012).  Here, the Office’s second letter to petitioner amounted to a refusal to revisit its initial adverse determination despite his submission of newly discovered evidence.  Although the statutory schemes of section 7623(b) and the Railroad Retirement Act are somewhat different, the Stovic opinion supplies analogous support for our conclusion that the Office’s second letter constituted a ‘determination” that is subject to judicial review.” 2019 T. C. Memo. 23, at pp. 11-12, footnote 5.

Note that the DC Cir Judge who wrote the opinion in Stovic was Justice Brett Kavanaugh, now of the Supremes.

 

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