Attorney-at-Law

A DISTINCTION WITHOUT A DIFFERENCE

In Uncategorized on 10/28/2020 at 18:35

Did ex-Ch J Michael B (“Iron Mike”) Thornton stir some unnecessary silt in analyzing Van Bemmelen, when allowed that only three (count ’em, three) objections were available to a frustrated whistleblower? Ex-Ch J Iron Mike permitted challenges to the Ogden Sunseteers’ shotdowns only for incomplete record (whether so rendered negligently or intentionally), need for background information to see whether agency considered all relevant factors, and provided so abbreviated a record that judicial review is impossible. See my blogpost “Administering Supplements,” 8/27/20 for ex-Ch J Iron Mike’s take.

It seems summary J is inapposite for whistleblowing review. Summary J is fact-finding, not fact-deciding. But post Van Bemmelen, conflicting facts aren’t the point; only an adequate basis in the record is needed, whatever the variances between facts alleged by the parties.

That’s the point of departure for Judge Courtney D. (“CD”) Jones, when she unpacks Bobbi V Marvel, Docket No. 10452-19W, filed 10/28/20. The OS can’t even get Bobbi’s name right (Order, at p. 2, footnote 2).

But at the close of play, the SBSE evaluater decided that the amount at issue was too small to trigger an audit, despite some five (count ’em, five) years of target’s nonfiling. “As the record supports the WBO’s actions and there are no disputes of fact, the result of the case does not turn on which standard is applied.” Order, at p. 2.

“We review the WBO’s determination for abuse of discretion, and the scope of our review is generally limited to the administrative record. We will decide if the WBO’s actions were arbitrary, capricious, or without sound basis in fact or law.

“But we do not oversee the IRS’s audit and collection activity. Consequently, ‘we do not review the IRS’s decision whether to audit a target in response to a whistleblower’s claim and * * * we have no authority to require the IRS to explain a decision not to audit.’ To the extent that denial of petitioner’s claim encompassed a decision not to audit, we do not review that decision.” Order, at pp. 2-3 (Citations omitted, but expect to see them often cited).

The SBSE checked out what Bobbi provided for the relevant years, and decided it was too small to pursue.

That’s enough for Judge CD. She understands Bobbi’s frustration, but pore l’il ole Tax Court can’t order IRS to audit anybody.

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