Attorney-at-Law

THE BLOWER REMANDED

In Uncategorized on 04/23/2020 at 07:58

Ian D. Smith, Docket No. 25605-15W, filed 4/23/20, is back in Tax Court. Y’all will remember that ID upended the Ogden Sunseteers when they tried to short-change him back in ’17. What, no? Then you’ll want to read my blogpost “What Price Glory?” 6/7/17, to get the skinny on ID, whereupon you can “follow me, if you will,” as Prof. Curtiss used to say on The Hill Far Above.

After ID’s earlier win, he moved for summary J and to shift BoP. IRS countered with a motion to remand, apparently to straighten out their earlier miscues.

Judge Morrison got this one, after then-Ch J L Paige (“Iron Fist”) Marvel took Judge Gerber off the case after the above-referred-to upending.

ID claims that remand is unnecessary and prejudicial. There are no new facts. Tax Court should decide this de novo, not on abuse-of-discretion, and not be immured within the administrative record. Finally, if remand, ID would have to file a fresh petition within 30 days if he didn’t like what the OS did, hence prejudicial.

Judge Morrison says Kasper (which I’ve blogged too many times to count) put paid to de novo review; thus the admin record is the gold standard. Likewise, ol’ Whistleblower 769-16W says remands in blower cases are copasetic; see my blogpost “Anyone Can Whistle – And Get Remanded,” 4/11/19. Also, blowers are Golsenized to DC Cir, which says a “new legal case” can result in remand.

Lo and behold, as my late and much lamented colleague Stan D. would have said, ID’s win first-above-hereinbefore-stated (as my sequestered-but-still-high-priced colleagues would say) is a “new legal case.” And DC Cir would much prefer the administrative agency do the heavy lifting, rather than itself try to sort these matters out. Expertise and familiarity, y’know.

Finally, “…we are not convinced that petitioner would be prejudiced by a remand. Petitioner argues that he would be prejudiced because he claims he would need to file another Tax Court petition after receiving a supplemental determination on remand. But the Tax Court will retain jurisdiction over the case during the remand and after the Whistleblower Office makes a supplemental determination. See Whistleblower769-16W v. Commissioner, 152 T.C. at 180. Therefore, a new petition will not be necessary.” Order, at p. 4-5.

And ID’s BoP motion remains in abeyance, in case he needs to try the case.

A Taishoff “Good Try” goes to ID’s trusty attorney, Shine Lin, Esq.

 

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