I had not blogged the precvious Tax Court Appearances of Marie Claudia Estorge, Docket No. 36014-21W, filed 12/20/24. The most IRS came up with, whether or not from Marie’s blow, was under $300K on a non-individual; hence Section 7623(b)(5) locked her out regardless.

Marie is a fighter in the Fighting Joe Insinga tradition, but it’s a lost cause. Though she’s pro se, either she knows the ropes or has a helper who does.

I’m only noting the case because I think Judge Courtney D. (“CD”) Jones walked past a promising path to settling the summary J vs. stipulated facts dispute in Whistleblower cases.

Here’s Judge CD Jones: “… in cases in which judicial review is based solely on the administrative record, Rule 121(a)(2) does not apply, and the parties must provide “statement[s] of facts with references to the administrative record.” Rule 121(j). In this context, summary judgment serves as a mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record or whether the WBO’s determination was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ Van Bemmelen, 155 T.C. at 72 (quoting Kasper v. Commissioner, 150 T.C. 8, 21 (2018)). In conducting this analysis, we do not substitute our judgment for that of the agency, but instead confine ourselves to ensuring that its determination was ‘within the bounds of reasoned decisionmaking.’ Id. (quoting Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019)). With respect to factual matters, this includes accepting the agency’s determinations as long as they are not clearly erroneous. See Kasper, 150 T.C. at 23 (citing Fargo v. Commissioner, 447 F.3d 706, 709 (9th Cir. 2006), aff’g T.C. Memo. 2004-13).” Order, at p. 5.

Taishoff says there are no “stipulated facts” in a record-rule whistleblower case. There’s a filed administrative record, which the parties either agree is complete as to what the WBO had before it, or have attempted and failed to enlarge. But the Court may not look behind except for manifest injustice.

In essence, this is the equivalent of the old commonlaw writ of certiorari to review, ordering the decider of fact to certify the record to the body charged to review, which can then to sustain or reverse the decision based on that record solely.

Adopt such a Rule, call it what it is, and the ambiguity first noted by Judge David Gustafson in Bialer (see my blogpost “The Whistle Blown on Summary J,” 12/2/19*) will vanish leaving not a wrack behind.

But alas, without a Tax Court Bar Association to support rational Rule amendments, I fear it will be a long long way to certiorari.

* https://taishofflaw.com/2019/12/02/the-whistle-blown-on-summary-j/