Attorney-at-Law

ADMINISTERING SUPPLEMENTS

In Uncategorized on 08/27/2020 at 17:22

No, I have not abandoned my law practice to flog dubious vegetal extracts. Rather today’s full-dress T. C. shows the high bar blowers must clear to supplement the administrative record, and how easily their blowings will crater even if they do.

Here’s Michael van Bemmelen, 155 T. C. 4, filed 8/27/20. Even though he’s self-represented in IRS’ motion for summary J sustaining Mike’s toss, he was represented before the Ogden Sunseteers by his trusty attorney, whom I’ll call Casey.

Mike whistled a bunch of Virgin Islanders who supposedly bilked the fisc of billions. Mike first sent in a bunch stuff (hi, Judge Holmes) in 2012, and sent in more thereafter. Casey sent in a Form 211, but had no Form 2848, so the OS told Mike to speak to them directly. Casey later submitted a Form 2848.

The OS initial claims evaluater couldn’t find whatever Mike sent over the years, so bucked Casey’s stuff to an LB&I classifier, who found Mike’s original stuff, reviewed Casey’s, and decided Mike’s and Casey’s stuff was “…speculative and/or did not provide specific or credible information regarding tax underpayments or violations of internal revenue laws.” 155 T. C. 4, at p. 10.

All y’all know that “and/or” is not a favored locution at Tax Court in whistleblower cases, but ex-Ch J Michael B (“Iron Mike”) Thornton disses that in a footnote.

“The record is clear, however, that in classifying petitioner’s claim Ms. G [LB&I classifier] explicitly premised her recommended rejection of the claim on conclusions both that his allegations were ‘purely speculative’ and that ‘the claim does not have enough information to support the alleged violations.’ The ARM [Award Recommendation Memorandum] adopted these recommendations. Accordingly we review whether the WBO abused its discretion in rejecting petitioner’s claim under these rationales.” 155 T. C. 4, at p. 30, footnote 10. (Name Omitted).

Mike wants to supplement the administrative record with the 2012 material he sent and a 2019 account of stuff Mike gave to CID.

2019 is out. Mike hasn’t provided “clear” evidence to show “(1) if the agency ‘deliberately or negligently excluded documents that may have been adverse to its decision,’ (2) if background information was needed ‘to determine whether the agency considered all the relevant factors,’ or (3) if the ‘agency failed to explain administrative action so as to frustrate judicial review….” 155 T. C. 4, at p. 22 (Citations omitted).

2012 does get in. You need clear evidence for that, and Mike has it.

“Both the Form 211 that petitioner submitted in March 2018 and [Casey’s] cover letter referenced petitioner’s 2012 submission. Indeed, in response to the directive ‘Name and title and contact information of IRS employees to whom violation was first reported, if known’ petitioner’s Form 211 states: ‘Written claims submitted to IRS WBO, October 2012.’ Moreover, Ms. G’s classification checklist memorandum, as incorporated in the ARM, states:

‘The information obtained in this claim is referenced to the claimant’s original claim (2012-003653). The original claim was determined to lack substance. The supplemental information provided in this claim does not have enough information to support the alleged violations.’

“These statements, coupled with the contents of petitioner’s Form 211, constitute a substantial showing made with clear evidence that the 2012 submission is properly part of the administrative record. Accordingly, we will grant petitioner’s motion to supplement the record, as supplemented, insofar as it seeks to complete the record with the 2012 submission.” 155 T. C. 4, at p. 20.

Doesn’t help, though.

“The administrative record shows that the WBO received and reviewed petitioner’s claim before forwarding it to Ms. G, a classifier in LB&I, for further review. Ms. G reviewed petitioner’s claim and noted that it referenced an earlier 2012 submission which had been ‘determined to lack substance. The supplemental information provided in this claim does not have enough information to support the alleged violations.’ Ms. G recommended that petitioner’s claim be rejected on the basis that the ‘[a]llegations are not specific, credible, or are speculative–[a]llegations are purely speculative in nature.’ The WBO accepted Ms. G’s recommendation and issued its determination rejecting petitioner’s claim because “the information provided was speculative and/or did not provide specific or credible information regarding tax underpayments or violations of internal revenue laws.’ We conclude that the WBO did not abuse its discretion in rejecting petitioner’s claim on this rationale.” 155 T. C. 4, at pp. 29-30.  (Footnote omitted, but I quoted most of it hereinabove).

Mike talked of money laundering, but it wasn’t clear what tax laws were violated, or whether it was target or some third party who did the violating. And all the 2012 stuff said is that Mike would provide more information later. And the 2018 Form 211 did no better.

His motion to supplement seems to seek some kind of discovery and evidentiary hearing that the Ogden Sunseteers intentionally subverted the whistleblowing process. The last collapses for want of evidence, sort of son-of-Greenberg’s Express. You need strong evidence, and Mike hasn’t got that.

Mike’s claim the OS should have done more investigation founders on Pub. L. No. 109-432, sec. 406(b)(1)(C), which lets the OS talk to the claimant and counsel if it wishes, “in its sole discretion.” 155 T. C. 4, at p. 33. (Emphasis by the Court). There’s no standard for judicial review here.

Summary J for IRS.

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