For the backstory of today’s installment, see my blogpost “Whistleblower Confidential,” 7/13/22. Now we have Whistleblower 20442-18W, filed 9/6/22 with the same story as 972-17W, the star of the above-cited blogpost. 20442 says IRS used his stuff to get money out of Target (not the department store); IRS says they had it all along, and 20442’s stuff added nothing, neither what he first proffered nor his supplements. So the Ogden Sunseteers bounced 20442’s Form 211.

20442 and IRS wanted, and got, a Rule 103 protective order for some Section 6103 material IRS would let 20442 quick-peek. They did discovery, but 20442 wasn’t happy, and wanted IRS’ “…complete administrative file, with no redactions, and its complete audit files for Target’s 2007–2015 years.” Order, at p. 2.

IRS claims “…the redactions to the administrative file are justified by the attorney-client privilege, the deliberative process privilege, and/or his obligation to protect confidential taxpayer information under section 6103. Respondent contends that the 2007–2015 audit files for Target are outside the scope of permissible discovery because they were not considered by the WBO and thus are not part of the administrative record. Alternatively, respondent contends that the audit files cannot be disclosed to petitioner because they constitute confidential taxpayer return information protected by section 6013.” Order, at pp. 2-3.

Judge Albert G. (“Scholar Al”) Lauber, showing once more his deft deflection of difficult decisions, notes that 972-17W deflated the Section 6103 defense with Section 6103(h)(4)(A), so maybe the taxpayer return info is in play. But Judge Emin (“Eminent”) Toro, who wrote the opinion in 972-17W, noted that not every piece of paper or electron IRS may have is part of the Ogden Sunseteers’ admin record. And IRS can always use Rule 27(a) and Rule 103(a) to set seals.

972-17W is not a ticket to a free-fire look-see.

But Judge Scholar Al isn’t quite ready to decide this.

“The Court would benefit from additional briefing from the parties in light of this recent Court-reviewed opinion. We request that the parties address the following questions (and any others they believe pertinent): (1) the extent (if any) to which section 6103 justifies redactions to the WBO administrative record to prevent disclosure to petitioner of third-party tax information, (2) the extent (if any) to which the other redactions respondent has proposed to the WBO administrative record—i.e., redactions unrelated to section 6013—are objectionable, and (3) the extent (if any) to which the IRS audit files for Target’s 2007-2015 tax years can be considered part of the administrative record of this case.” Order, at pp. 3-4.

Papers due 10/3.