In Uncategorized on 05/01/2020 at 11:26

Congress picked up on Whistleblower 21276-12W in 2018, after Judge Julian I Jacobs and I had done two years earlier; see my blogpost “Dares or Forfeits,” 8/3/16. Then Congress codified the result, that whistleblower awards aren’t limited to Title 26 money, but include, without limitation, fines, forfeits and FBARs.

So Bradley Birkenfeld, Docket No. 9896-17W, filed 5/1/20, wants the $2.22 million IRS admits they owe him from the Title 26ers he delivered. And he wants ex-Ch J Michael B (“Iron Mike”) Thornton to make the Ogden Sunseteers fork over his piece of the FBAR chop money IRS got from the 47 (count ‘em, 47) dodgers Brad served up for them.

Ex-Ch J Iron Mike punts the whole thing back to Ogden.

“The parties agree that the Whistleblower Office’s determination is deficient in failing to consider whether non-Title 26 proceeds were collected as a result of petitioner’s information regarding the 47 taxpayers. Respondent has moved to remand this case to the Whistleblower Office to analyze whether any non-Title 26 proceeds were collected from any of the 47 taxpayers and to issue a new determination. Petitioner’s position about respondent’s motion for remand seems to have evolved over time. In petitioner’s initial response to respondent’s motion for remand, petitioner stated that he ‘is not opposed to Respondent’s Motion to Remand if the remand will lead to the development of a complete administrative record, and if limitations are put in place to prevent the remand from leading to further unnecessary delay.’ In more recent filings with the Court, however, petitioner opposes remand as ‘completely unnecessary.’ Petitioner seems to suggest that instead of remanding this case to the Whistleblower Office this Court should decide the question, not passed on by the Whistleblower Office, as to how much of an award, if any, petitioner might be entitled to as a result of non-Title 26 proceeds collected as a result of the information he provided.” Order, at p. 4.

Tax Court isn’t going to unscramble this frittata.

Ex-Ch J Iron Mike will keep jurisdiction, to insure the OS act swiftly. Congress’ codification of the all-proceeds rule came between Brad’s petition and this remand request, so that’s a new wrinkle deserving of remand. Tax Court has to decide based on the administrative record, and everyone agrees that isn’t complete; whistleblower cases don’t get tried de novo in Tax Court.

And Brad’s motion for more discovery can await the result of the remand.

In any case, Brad doesn’t get his loot until all is said and done.

“In petitioner’s motion for partial summary judgment, petitioner requests an adjudication that he is entitled to ‘immediate payment’ of the $2,229,553 award that the Whistleblower Office determined based solely on the Title 26 collected proceeds. The relevant regulations provide: Payment of an award will be made as promptly as the circumstances permit, but not until there has been a final determination of tax with respect to the action(s), as defined in paragraph (d)(2) of this section, the Whistleblower Office has determined the award, and all appeals of the Whistleblower Office’s determination are final or the whistleblower has executed an award consent form agreeing to the amount of the award and waiving the whistleblower’s right to appeal the determination.” Sec. 301.7623-4(d)(1), Proced. & Admin. Regs. (emphasis added).” Order, at p. 6.




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