In Uncategorized on 10/27/2021 at 16:00

I post today with real regret Joseph A. Insinga, 157 T. C. 8, filed 10/27/21*, wherein Judge David Gustafson announces the death of Fighting Joe Insinga, who starred or featured in a round dozen of my blogposts.

But Fighting Joe died fighting, as a true whistleblower would wish to do. And his passing deserves a full-dress T. C., not a measly memo. There are five (count ’em, five) attorneys named in 157 T. C. 8 for the late Fighting Joe. That’s one better than young Fortinbras allocated to Hamlet.

Judge Gustafson takes up the role of young Fortinbras. After an abstract and brief chronicle of Fighting Joe’s battles with the Ogden Sunseteers, elaboration of which is to be found in my blogposts, Fighting Joe “…filed an amended petition in September 2017, asserting only the two remaining claims. Since then the parties have filed and briefed cross-motions for summary judgment and have filed supplemental briefs on the impact on this case of Kasper v. Commissioner, 150 T.C. 8 (2018), and Van Bemmelen v. Commissioner, 155 T.C. 64 (2020).” 157 T. C. 89, at p. 3.

Fighting Joe died March 22 this year, with decision pending. The Palmetto State has duly appointed a persrep for the late fighting Joe, and she stands ready, willing, and able to take up Joe’s quarrel with the foe, and to hold high the torch she got from Joe’s failing hands.

Joe’s persrep, Ms. G, moves to step in, and IRS generously doesn’t object. Only question is, can she do it.

Judge David Gustafson, a fellow South Carolinian, obliging in the best tradition, says “sure enough.”

Like deficiency cases, here there’s a determination and a timely petition. Like the non-tax Federal False Claims Act cases, Section 7623 is intended to benefit the claimant by remedying any harm he may incur in bringing the claim. And caselaw says the non-tax Federal False Claims Act claimant’s claim survives his/her death.

But there’s more.

“Of course, one obvious intended purpose of section 7623 (analogous to the purpose of the FCA) is to promote the tax collection function (and thus to benefit the Government) by bringing information about noncompliance to the attention of the IRS. However, the means by which section 7623 does so, provided in subsection (b) (entitled ‘Awards to whistleblowers’), is to incentivize whistleblowers to risk the harms of providing such information and to compensate them for the harms they may suffer in doing so. A whistleblower’s anonymity in Tax Court proceedings is not guaranteed, see, e.g., Whistleblower 14377-16W v Commissioner, T. C. Memo 2021-113, supplementing 148 T. C. 510 (2017); and tax whistleblowers are especially vulnerable to harms such as professional stigma, retaliation, and economic duress, including current employment and future employability, especially given the absence of antiretaliatory provisions in section 7623, see Whistleblower 14106-10W v. Commissioner, 137 T.C. 183, 203 (2011).” 157 T. C. 8, at pp. 12-13, footnote 11.

Reg. 301.7623-4(d)(4) provides for survival after death, but that was enacted after Fighting Joe filed, and Judge Gustafson notes that it only  “lends some persuasive support” to letting Ms. G in. 157 T. C. 8, at p. 14.

But Rule 63(a) lets in ex’rs, adm’rs, and persreps in every tax Court case. No one doubts Ms. G is the proper successor, or that Tax Court had jurisdiction when Fighting Joe passed away.

So another case of first impression is decided; whistleblowing survives. Rest in peace, Fighting Joe.

*Joseph A. Insinga 157 T C 8 10 27 21


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