Attorney-at-Law

ANYONE CAN WHISTLE – AND GET REMANDED

In Uncategorized on 04/11/2019 at 16:24

All y’all will doubtless remember Judge Vasquez’s concern about remanding a whistleblower case. If not, see my blogpost “Remand? You Can Whistle For It,” 1/31/18, when Judge Vasquez feared that remanding Suzanne Jean McCrory might result in the Court ordering IRS to commence some kind of proceeding. Obviously no jurisdiction for that.

And anyway, Judge Vasquez couldn’t find any precedent for a remand in a whistleblower case.

Well, now ex-Ch J Michael B (“Iron Mike”) Thornton decides that there can be a remand, and Chief Judge Foley, Judges Gale, Marvel, Gustafson, Morrison, Kerrigan, Buch, Lauber, Nega, Pugh, Ashford, and Urda, all agree. No dissent, so maybe Judge Vasquez is convinced, even if he doesn’t say so.

There’s the analogy of the stand-alone 6015, where Section 6015(e) gives Tax Court de novo review, and where innocent spousery can be raised when there’s none of deficiency, NITL or NFTL in sight. But that’s the only case where there’s no remand because there was no agency determination to review.

Whistleblower 769-16W, 152 T. C. 10, filed 4/11/19, wants his [personal pronoun based on characterization at p. 7”… the IRS failed to comply with the statutory mandate to permit the taxpayer to make an audio recording of his CDP hearing….”) case tried and his money paid now. Remand, he claims, will only delay the process.

IRS admits they didn’t consider the Congressional committee report wherein 769-16W dished on the dodgers, and want to reconsider. Besides, the Ogden Sunseteers claim there are other claimants for the boodle who precede 769-16W. OK, says 769-16W, try the whole shootin’ match here and now.

But the other claimants aren’t before the Court, Tax Court has no jurisdiction to whack up awards, and DC Cir, to which 769-16W is Golsenized, says it’s better for the agency to cure its own mistakes rather than have the courts do it.

Now if 769-16W were seriously prejudiced, or if the demand for remand is made frivolously or in bad faith, it would be another story. But all 769-16W is beefing about is the delay in his payday.

“Petitioner contends that remand will result in prejudice because it will prevent ‘immediate payment of the money to which * * * [petitioner] is entitled.’ As a practical matter, however, even if we were to deny respondent’s motion for remand, there would be no ‘immediate payment’ of a whistleblower award; any award would have to await resolution of proceedings in this forum, which might well involve a trial, posttrial briefing, and possibly an appeal.  And as previously noted, even if, after conducting further proceedings in this forum, we ultimately concluded that respondent had abused his discretion in denying petitioner’s claim for an award, the ultimate remedy might well require a remand to the Whistleblower Office in any event.  Granting respondent’s motion for remand will simply return this case to the Whistleblower Office sooner than would occur in that scenario.  Should this matter be resolved as a consequence of a remand, the parties’ and the Court’s resources will be greatly conserved.” 152 T. C. 10, at pp. 15-16.

“But even if this case is not resolved upon remand and additional time passes before petitioner receives judicial review of respondent’s ultimate determination, we believe that any such delay is warranted inasmuch as completing the administrative process should facilitate more focused judicial review.” 150 T. C. 10, at p. 16. (Citation omitted).

And again obeisance is paid to Kenneth William Kasper, whose journey through Tax Court I’ve extensively blogged. The record got supplemented in Kenneth William’s case. 769-16W wants IRS to produce some documents, but remand can accomplish that as well. If it doesn’t, 769-16W’s motion to compel production is held in abeyance until after the remand, and the parties file a status report stating how they want to proceed.

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