Judge Albert G. (“Scholar Al”) Lauber goes past the simple “we got nothing, so you get nothing” beloved of the Ogden Sunseteers in Andrew Bill Katakis, T. C. Memo. 2023-112, filed 8/30/23.

Andy B. says Target (the putative bad guys, not the department store) “engaged in money laundering through real estate transactions. He included a spreadsheet listing hundreds of such transactions, showing for each the buyer, the seller, the sale price, the property address, the transaction date, etc. For some transactions he appended ‘WB Comments,’ e.g., ‘Where did the down payment come from and who is making the loan payments and what is the current loan balance[?]’ He did not allege any specific violation of any Federal tax law.” T. C. Memo. 2023-112, at p. 2.

The OS did send Andy B’s disquisition over to SB/SE for a classifier (that’s a subject matter expert) to unscramble said frittata, but the classifier found no way of determining year(s), or source documents, to show what tax hadn’t been paid, so the OS bounced Andy B. without sending his stuff to Exam.

Andy B. petitions, but of course is denied.

“In Li v. Commissioner, 22 F.4th 1014, the D.C. Circuit delineated this Court’s jurisdiction to review cases (like this one) where the IRS has issued a threshold rejection of a whistleblower’s claim. In Li the WBO rejected a whistleblower’s claim on the ground that the information she submitted was ‘vague and speculative.’ Id. at 1017. The WBO did not forward the claim to an IRS examination team for further review, and no action was taken against the target taxpayer.

“The D.C. Circuit held that the Tax Court lacked jurisdiction in these circumstances because the IRS had made no ‘award determination’ within the meaning of section 7623(b). Li v. Commissioner, 22 F.4th at 1017. As the court explained, ‘an award determination by the IRS [under section 7623(b)] arises only when the IRS ‘proceeds with any administrative or judicial action described in subsection (a) based on information brought to the Secretary’s attention by [the whistleblower].’” T. C. Memo. 2023-112, at p. 3.

So according to DC Cir, whatever happens in Ogden stays in Ogden, unless some money winds up with IRS.

I’ve hammered Mandy Mobley Li enough before now, and DC Cir’s rather unusual (to be charitable) decision equally. That said, I can’t but feel that the entire Tax Court bench is not thrilled to bits with Li. Is Tax Court’s only function to review how the Ogden Sunseteers divvied the swag? Is that really why Congress enacted Section 7623?

If the answer to the two foregoing questions is “yes,” why does Judge Scholar Al discuss what happened before the OS kicked Andy B’s Form 211?

I await further enlightenment.