Attorney-at-Law

REMAND AND RETREAT

In Uncategorized on 08/04/2022 at 16:01

Judge Emin (“Eminent”) Toro remands again Whistleblower 769-16W, 159 T. C. 2, filed 8/4/22, back to the Ogden Sunseteers (how nice they have something to do post-Li). But he won’t retain jurisdiction.

Both 769-16 and IRS want the remand, because “‘[t]he pending IRS actions against the target taxpayers are not interdependent, and the actions may become final at different times and involve different levels of contribution from the Petitioner’s information, if it is considered.’ Therefore, ‘it may be appropriate for the Whistleblower Office upon remand to issue a separate determination relating to each [target] taxpayer.’ In addition, ‘[t]he timeline for the resolution of any IRS actions against the [target] taxpayers cannot be known at present, nor is that timing under the control of the Whistleblower Office.’ And ‘[t]he Whistleblower Office must wait until the outcome of the IRS actions before the Whistleblower Office can evaluate the contribution, if any, of the Petitioner’s information, and cannot make any determination until there is a final determination of tax.'” 159 T. C. 2, at pp. 2-3.

But there never yet was a remand to the OS where the Tax Court judge did not retain jurisdiction. And the IRS and 769-16 can’t agree to give Tax Court powers it doesn’t have. But trust Judge Eminent to find a way.

“Nothing in section 7623(b) precludes us from proceeding as the parties request, and we see no other reason for declining their invitation in the circumstances here.” 159 T. C. 2, at p. 3.

Tax Court acts like an appellate court when it reviews whistleblower cases; appellate courts very rarely retain jurisdiction, unless an administrative agency is unusually obstreperous or contumacious. And the Ogden Sunseteers are docile to a fault.

True, three (count ’em, three) years ago, ex-Ch J Michael B (“Iron Mike”) Thornton retained jurisdiction when he remanded 769-16. See my blogpost “Anyone Can Whistle – And Get Remanded,” 4/11/19. But now, with an open-ended timeline beyond the parties’ control, that serves no purpose.

“Finally, proceedings under section 7623 differ from those under section 6330, which governs hearings concerning proposed levies.  Section 6330(b)(2) contemplates that ‘[a] person shall be entitled to only one hearing under this section with respect to the taxable period to which the unpaid tax . . . relates.’ That statutory text counsels in favor of our retaining jurisdiction with respect to any remand for a supplemental hearing in cases under section 6330. Doing so permits us to review the entire hearing (as supplemented) once the remand is complete and avoids any disputes about compliance with the section 6330(b)(2) restriction as well as any potential prejudice to a taxpayer seeking our review. By contrast, nothing in section 7623(b) contemplates that a whistleblower is limited to one proceeding before the Whistleblower Office. Thus, our declining to retain jurisdiction during a remand here, at the request of the parties and after vacating the Whistleblower Office’s prior determinations, neither departs from the statute nor prejudices a whistleblower in Petitioner’s circumstances.” 159 T. C. 2, at pp. 5-6.

So 769-16 may be furnishing forth much future blogfodder, to make up for all the tossed post-Li gang.

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