Michael Lissack v. Cmsnr. IRSMichael Lissack v. Cmsnr. IRS
Filed January 10, 2025
Erica L. Brady-Gitlin argued the cause for appellant. With her on the briefs were Gregory S. Lynam and Scott A. Knott.
Brian C. Wille and Usman Mohammad were on the brief for amicus curiae Whistleblower 1109-13W in support of appellant.
Dean Zerbe and Stephen M. Kohn were on the brief for amicus curiae National Whistleblower Center in support of appellant.
Julie Ciamporcero Avetta, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief was Bruce R. Ellisen, Attorney.
Before: PILLARD and KATSAS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: Section 7623 of the Internal Revenue Code authorizes the IRS to pay awards to whistleblowers who identify underpayment of taxes or violations of internal revenue law. The provision at issue here, subsection 7623(b)(1), mandates awards for whistleblowers who provide the IRS with information that makes a substantial contribution to a tax adjustment. It calls for awards of between 15 and 30 percent of proceeds the IRS collects “as a result of” an “administrative or judicial action” that is “based on information” provided by a whistleblower.
Lissack submitted information to the IRS that he thought showed that a condominium development group evaded taxes through its treatment of golf-club-membership deposits. The IRS deemed the information Lissack submitted sufficiently specific
In an opinion issued in 2023, we held that the Tax Court had jurisdiction, the Whistleblower Definitions Rule was a reasonable interpretation of the statute under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the Tax Court correctly decided summary judgment on a sufficient administrative record that Lissack never sought to supplement. Lissack v. Comm‘r, 68 F.4th 1312 (D.C. Cir. 2023).
Lissack sought Supreme Court review. Petition for Writ of Certiorari, Lissack v. Comm‘r, 144 S. Ct. 2707 (2024) (No. 23-413). In the interim, the Court decided Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), in which it held that ”Chevron is overruled.” Id. at 2273. Courts must now “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Id. The Court then granted Lissack‘s petition, vacated our judgment, and remanded the case for further consideration in light of Loper Bright. Lissack v. Comm‘r, 144 S. Ct. 2707 (2024). We now reconsider Lissack‘s appeal in accordance with that mandate. Reviewing the challenged rules without deference, we conclude that the Service correctly interpreted and applied the Whistleblower Definitions Rule, so we again affirm the decision of the Tax Court.
BACKGROUND
A.
The Internal Revenue Service (IRS or Service) has authority under
In 2006, Congress amended the tax whistleblower statute. Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, § 406, 120 Stat. 2922, 2958-60 (2006 Act). Even as it retained in
Under the mandatory-award provision, a whistleblower “shall . . . receive” an award if the IRS “proceeds with any administrative or judicial action described in subsection (a)“—i.e., detecting underpayments or detecting and bringing evaders to judgment—“based on information brought to the Secretary‘s attention by” the whistleblower.
The judicial-review provision states: “Any determination regarding an award under paragraph [(b)](1) . . . may, within 30 days of such determination, be appealed to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter).”
B.
Lissack challenges three parts of a Treasury Department regulation we refer to as the Whistleblower Definitions Rule: (1) the definition of “administrative action,” (2) one of the examples illustrating what counts as the Service “proceed[ing]” with an administrative action “based on” whistleblower information, and (3) the definition of “related action.”
First, as to “administrative action,” recall that an award is mandatory under the statute if the IRS “proceeds with any administrative or judicial action” that is “based on” the whistleblower‘s information.
Next, in defining how the Service “proceeds” with an action “based on” whistleblower information,
The regulatory definitions of “administrative action” and “proceeds based on” work together. They help explain that the IRS may consider investigations into tax issues unrelated to the whistleblower submission as separate administrative actions. The upshot is that a whistleblower whose information may have “substantially contributed” to a fruitless action against a person is not entitled to share proceeds from a distinct action against that same person that did not draw on the whistleblower‘s information. As the agency explained in the preamble to the final regulations, “the tax administration process is a long and multi-faceted one that may extend over the course of many years and may involve multiple substantial contributions from different sources.” Awards for Information Relating to Detecting Underpayments of Tax or Violations of the Internal Revenue Laws, 79 Fed. Reg. 47,246, 47,262/3 (Aug. 12, 2014) (codified at 26 C.F.R. pt. 301). In cases involving multiple tax issues, treating each distinct tax issue as a separate “administrative action” enables the IRS to calibrate whether and to what extent a recovery was “based on” a whistleblower‘s tip “by reference to just the discrete and relevant portion of the examination to which the information provided relates.” Id. at 47,250/3.
The Whistleblower Definitions Rule includes some examples illustrating rule applications. The challenged Example Two to the definition of “proceeds based on” describes cases in which the IRS‘s investigation of a whistleblower submission uncovers “additional facts that are unrelated to the activities described in the information provided by the whistleblower,” leading the Service to examine issues other than those the whistleblower identified.
The third target of Lissack‘s challenge is the Whistleblower Definitions Rule‘s interpretation of the statutory term “related actions.”
C.
In 2009, Michael Lissack filed with the IRS Whistleblower Office an Application for Award for Original Information (Form 211). He submitted almost 200 pages of material identifying a condominium development group and showing why he thought it had underpaid its taxes on golf club memberships. Lissack contended that, after making membership deposits nonrefundable in 2008, the development group should have reported the retained deposits to the IRS as gross income.
Lissack‘s information led to an IRS examination into the development group. A senior tax analyst in the Whistleblower Office determined that Lissack‘s submission identified a tax issue and referred it to the IRS Large Business and International Division. A revenue agent in that division opened an investigation based on Lissack‘s information and sent progress reports to the Whistleblower Office.
In a 2011 report, the revenue agent explained that, before receiving Lissack‘s submission, the IRS had not planned to investigate the development group, but the information Lissack provided “was sufficient to warrant beginning of examination.” Lissack v. Comm‘r, 157 T.C. 63, 66 (2021). In other words, the revenue agent acknowledged that Lissack‘s submission was the reason the IRS opened an examination. The following month, the revenue agent reported that he had fully researched the membership-deposit tax issue and concluded that the development group reported the deposits correctly.
Even as he reported that he was closing the book on the membership-deposit issue Lissack had raised, the revenue agent noted that his investigation had uncovered a different tax issue that was “unrelated to the subject of the whistleblower claims.” Id. He saw indications that the development group had taken a $60 million deduction for “bad debt,” meaning a business debt that the company characterized as worthless and deducted from gross income. Id.; Topic No. 453, Bad Debt Deduction, IRS, https://perma.cc/VN67-LGGF (last updated Apr. 6, 2023). The revenue agent accordingly expanded the audit based on the facts he had discovered.
In 2013, the revenue agent finished the examination and ordered several tax adjustments, the largest of which was for the $60 million bad-debt deduction. The agent reported that Lissack did not “provide[] any information for the adjusted issues.” Lissack, 157 T.C. at 66; see J.A. 59 (Declaration of Whistleblower Office Analyst).
In 2017, the Whistleblower Office denied Lissack‘s claim for an award. In the final determination letter, the Whistleblower Office informed Lissack that his claim was denied “because the IRS took no action on the issues you raised.” J.A. 16. “After receipt of your information,” the letter explained, “the IRS initiated an examination” of the development group, “and the IRS reviewed the information you provided as part of that examination. However, that review did not result in the assessment of additional tax, penalties, interest or additional amounts with respect to the issues you raised.” J.A. 16. Finally, the letter informed Lissack that the IRS did assess additional taxes against the taxpayer, “but the information you provided was not relevant to those issues.” J.A. 16.
In the decision now under review, the Tax Court granted summary judgment in full in favor of the IRS. In a carefully reasoned opinion, the Tax Court held that, although the IRS “did initiate an action” based on the information Lissack provided regarding membership deposits, he “is not eligible for a whistleblower award” because “the IRS did not collect any proceeds ‘as a result of th[at] action‘” or any “related action.” Lissack, 157 T.C. at 69-70 (alteration in original) (quoting
In granting summary judgment, the Tax Court had “no difficulty concluding that the regulation passes muster” under Chevron. Id. at 74. The court noted that the statute “does not describe or define an ‘administrative or judicial action‘” so, as relevant here, “leaves ample scope to the Secretary to define the term” to refer to “‘all or a portion of’ an IRS civil or criminal proceeding.” Id. at 72 (quoting
The Tax Court also rejected Lissack‘s remaining two arguments. First, the court held that the investigation into the bad debt was not a “related action,” under the IRS‘s definition of that term, to the action on the membership-deposit issue Lissack identified. Id. at 76 (citing
This case now returns to us on remand from the Supreme Court. Because Chevron is overruled, we consider Lissack‘s claims in light of the mandate to “exercise [our] independent judgment in deciding whether an agency has acted within its statutory authority.” Loper Bright, 144 S. Ct. at 2273.
DISCUSSION
The IRS argues that the Tax Court lacked jurisdiction over Lissack‘s appeal, and in any event reached the correct result. Lissack counters that the Tax Court correctly exercised jurisdiction but erred in granting summary judgment to the IRS because the Whistleblower Definitions Rule conflicts with the statute, a genuine factual dispute remains over whether the revenue agent relied on Lissack‘s submission, and the administrative record was incomplete without the entire examination file. We adhere to our prior holding that the Tax Court had jurisdiction. Without any reliance on Chevron deference, we are persuaded that the Whistleblower Definitions Rule correctly interprets the statute. We reinstate as unaffected by Loper Bright our judgment upholding the decision of the Tax Court.
A. The Tax Court had jurisdiction.
“Any determination regarding an award under”
By its plain terms,
The Service challenges the Tax Court‘s jurisdiction based on Li v. Commissioner, 22 F.4th 1014 (D.C. Cir. 2022). We held in Li that a threshold rejection of a Form 211 (i.e., an application for a mandatory award) was not a reviewable “award determination under subsection (b)(1)-(3).” Id. at 1016; see id. at 1017-18. The Whistleblower Office had concluded that Li‘s Form 211 provided only “vague and speculative information it could not corroborate, even after examining supplemental material Li herself did not provide,” so the Office did not even forward Li‘s submission to an IRS examiner. Id. at 1017. We referred to the text of
The Service contends that our logic in Li—looking to when the IRS “proceeds with” an action per
The fact that the IRS conducted an examination here suffices to distinguish Lissack‘s case from Li. Li never claimed that the IRS proceeded with any administrative or judicial action against the target taxpayer based on her submission. Li, 22 F.4th at 1017 n.2. Here, by contrast, there is no dispute that the Whistleblower Office referred Lissack‘s submission to the IRS, and an IRS revenue agent initiated an examination of the membership-deposits issue that Lissack identified. That referral and examination count as the IRS “proceed[ing] with” an “administrative action” that was “based on” the information Lissack brought to the Secretary‘s attention.
These facts distinguish this case from Li, in which the IRS declined to take any action at all after receiving an application for a whistleblower award. Our holding in Li that the Tax Court lacked jurisdiction reflects the “general unsuitability for judicial review of agency decisions to refuse enforcement.” Heckler v. Chaney, 470 U.S. 821, 831 (1985) (reiterating the principle that “an agency‘s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency‘s absolute discretion“). Here, unlike in Li, the Service took action against the taxpayer Lissack identified, and the parties dispute whether Lissack is entitled to any of the money the IRS eventually collected from that taxpayer.
In sum, contrary to the Service‘s position, the statute does not require a whistleblower to establish a meritorious claim to an award before the Tax Court may exercise jurisdiction to review the IRS‘s determination on that claim. An “unusually high degree of clarity” is required to treat statutory requirements as jurisdictional, Myers, 928 F.3d at 1035, and, as just explained,
Consistent with the plain terms and structure of the statute and our decision in Li, the Tax Court had jurisdiction over Lissack‘s appeal.
B. The challenged regulations correctly interpret the tax whistleblower statute.
Lissack challenges three provisions of the Whistleblower Definitions Rule. As a general matter, we review the decisions of the Tax Court “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.”
Having set aside Chevron‘s framework and carefully reconsidered the statutory issues de novo, we now hold that the Whistleblower Definitions Rule is a proper exercise of the Treasury Department‘s authority under
1.
Lissack argues that, under the plain language of the statute, he is entitled to a whistleblower award because the IRS would not have opened an examination into the condominium development group‘s tax problems but for his submission. He challenges the regulatory provisions that control the IRS‘s determinations of whether any proceeds were “collected as a result of” an IRS “administrative action” to which a whistleblower “substantially contributed.”
Lissack‘s challenge therefore requires us to answer two questions: First, whether the tax whistleblower statute requires the IRS to consider the “whole action“—in this
We hold that the Whistleblower Definitions Rule correctly implements the tax whistleblower statute. In this context, the ordinary meaning of “administrative action“—activities by executive agencies—makes the most sense if read to mean administrative action on the discrete tax issue or issues the whistleblower‘s information identifies. The statutory context also makes clear that an administrative action “proceeds based on” a whistleblower‘s information when that information has substantially contributed to the IRS‘s administrative action and its ultimate recovery.
“We begin, as in any case of statutory interpretation, with the language of the statute.” CSX Transp., Inc. v. Ala. Dep‘t of Revenue, 562 U.S. 277, 283 (2011).
The statute does not further define “administrative action,” so we look to the ordinary meaning of the phrase. See CSX Transp., Inc., 562 U.S. at 284. “Administrative” describes “administration,” which in the context of regulatory activity refers to “[t]he executive branch of a government.” WEBSTER‘S II DICTIONARY 11 (3d ed. 2005). “Action” is “[a]n act or deed.” Id. at 9; see also Action, BLACK‘S LAW DICTIONARY (11th ed. 2019) (“[t]he process of doing something; conduct or behavior“). The phrase “administrative action,” then, generally refers to acts of executive agencies.
Two other phrases from
The IRS‘s “proceeds based on” rule more accurately carries out the statutory requirement that the whistleblower information have “substantially contributed” to a recovery than does Lissack‘s but-for reading.
Lissack makes two principal counterarguments. First, he argues that this interpretation is contradicted by what he claims is the IRS‘s past practice of treating an examination as a single administrative action. He says that when Congress amended the statute in 2006 to add mandatory whistleblower awards, it
intended to incorporate the IRS‘s then-existing practice. Pointing to a committee staff summary of the 2006 amendments, Lissack contends it shows the IRS did not previously identify distinct administrative actions within a larger examination.
Lissack‘s past-practice argument misses the mark. Before 2006, whistleblower awards were entirely at the discretion of the IRS,
Second, Lissack defends his but-for causation rule, arguing that he provided “valuable information” insofar as he informed the IRS that the condominium development group taxpayers “are the type of taxpayers to misstate their tax liability generally, and debt in particular.” Appellant‘s Br. 10. The IRS responds that the Whistleblower Definitions Rule correctly interprets the statute to require awards only to whistleblowers whose information advances the IRS‘s recovery to a substantial degree. We find ample reason to doubt that Congress intended to entitle whistleblowers to substantial awards just for raising plausible but meritless concerns about taxpayers who, on the IRS‘s further investigation of separate leads, turn out to be noncompliant in some other, unrelated way. Under Lissack‘s rule, someone who triggered even a small, fruitless investigation could claim a mandatory payout whenever the IRS‘s own further examination yields a separate, large adjustment. Such a regime likely would encourage whistleblowers to flyspeck major taxpayers in search of any plausible hint of underpayment. The IRS‘s approach, in contrast, adheres to the statute by calibrating mandatory awards to the fruits of the particular IRS actions that the whistleblower‘s information substantially assists.
Congress directed the IRS to reward whistleblowers based on the extent of their substantial contributions to recovery of unpaid taxes. The challenged provisions of the Whistleblower Definitions Rule measure contributions according to the degree to which the whistleblower‘s specific facts aid the relevant portion of an examination. Those provisions are a valid exercise of the IRS‘s authority under the tax whistleblower statute.
2.
Even if the “administrative action” definition and Example Two are valid
Lissack argues that the IRS‘s rule defining “related action” impermissibly narrows the statute‘s reach. He contends “related actions” includes actions against the same taxpayer for underpayments different from those identified in the whistleblower‘s submission. In support, Lissack invokes ordinary meanings of “related” as “belonging to the same family, group, or type; connected,” Appellant‘s Br. 35 (quoting an unidentified edition of the Oxford English Dictionary), and he asserts that the IRS investigation of the condominium development group‘s bad debt was necessarily “related” to the group‘s membership-deposits problem his submission identified.
The challenged rule instead defines a “related action” more specifically, as an action against someone the whistleblower did not identify but who engaged in factually parallel nonpayment that the whistleblower‘s information, without more, enabled the IRS to detect and recover.
In considering whether the rule correctly defines “related actions,” we look to the IRS‘s statutory analysis for its persuasive value. As the Court reiterated in Loper Bright, “courts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes.” 144 S. Ct. at 2262 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). While agency interpretations are not controlling, they nonetheless “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore, 323 U.S. at 140. We assess the persuasive value of an agency‘s interpretation under Skidmore based on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id.
The Rule‘s definition of “related action” makes good sense of that statutory phrase in context. It unites actions that involve “substantially the same” facts to reward whistleblowers whose submissions enable the IRS, without further investigation, to identify additional noncompliant taxpayers. That logic accords with the statute, which directs the IRS to grant awards from recoveries
Lissack makes two counterarguments. He argues that Congress would have chosen a narrower term than “related” had it intended the IRS‘s reading. Because “Congress never limited related actions to actions relating to another taxpayer, which it easily could have,” Lissack says, the IRS should not be able to include that limitation in its definition. Appellant‘s Br. 36. But the mere possibility that the statute could have been worded even more clearly does not defeat the IRS‘s reading. See, e.g., Slack Techs., LLC v. Pirani, 598 U.S. 759, 769 (2023).
Lissack also looks to the False Claims Act (FCA) for support. He argues that
Lissack has not established that the IRS rule misinterprets the statute‘s inclusion of recoveries from any “related action,” and he does not contend that the rule is otherwise contrary to the APA.
C. The Tax Court had no obligation to conduct a trial de novo.
In challenging the Tax Court‘s affirmance of the Whistleblower Office determination denying him an award under
The parties agree that we review legal rulings of the Tax Court de novo, including rulings on motions for summary judgment, Byers, 740 F.3d at 675, but they dispute the correct standard of review in the Tax Court. Lissack argues that the Tax Court should review determinations of the Whistleblower Office “as it reviews cases under the Tax Court‘s original deficiency jurisdiction,” Appellant‘s Br. 40—by “trial de novo,” Ax v. Comm‘r, 146 T.C. 153, 161 (2016)—instead of confining its review to the administrative record. Lissack critiques the Tax Court‘s decision in Kasper v. Commissioner, 150 T.C. 8 (2018), which held that the Tax Court reviews whistleblower award decisions under APA section 706(2)(A) based on the administrative record. Id. at 14-15, 20-22. Two amici join Lissack to argue that de novo factfinding by the Tax Court would better serve Congress‘s intent to establish meaningful review of Whistleblower Office decisions.
The IRS defends the standard of review established in Kasper. It also argues that we have no occasion here to reach the issue “because the denial of Lissack‘s claim was correct under any standard of review.” IRS Br. 45. We agree that the Tax Court‘s decision is correct under any standard of review, so we have no occasion to pass on the merits of Kasper.
Lissack‘s appeal is comprised of legal questions, including (1) the validity of the Whistleblower Definitions Rule, (2) whether material disputes of fact preclude summary judgment, and (3) the adequacy of the record before the Tax Court.
First, in resolving Lissack‘s legal challenges to the IRS‘s interpretations of relevant statutory terms, the Tax Court conducted de novo review to identify statutory ambiguity and analyze the Whistleblower Definitions Rule under Chevron, while this court now determines without reliance on Chevron whether the Rule comports with
Second, the propriety of summary judgment is likewise a legal question considered de novo. Lissack asserts that the Tax Court should not have granted summary judgment because key record facts are disputed, but he fails to show that to be the case. A factual dispute is “material,” precluding summary judgment, only “if its resolution ‘might affect the outcome of the suit.‘” Trudel v. SunTrust Bank, 924 F.3d 1281, 1285 (D.C. Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The IRS agrees with Lissack‘s factual assertion that it would not have opened any examination of the condominium development group if not for Lissack‘s Form 211. The problem for Lissack is that the but-for causal link he emphasizes is legally insufficient to support his claim.
We, like the Tax Court, recognize that the IRS would have made no tax adjustment on the bad debt if it had not opened an examination on Lissack‘s submission regarding the taxpayer‘s treatment of membership deposits. Cognizant of that fact, our de novo review of the summary judgment yields the same conclusion as the Tax Court‘s: Under the statute and Rule, the adjustment was not “a result of” the “administrative action” regarding membership deposits that the IRS undertook “based on” Lissack‘s information, or to which his information “substantially contributed.”
Lissack insists that discovery would have established that the revenue agent relied on his submission, but the facts he says he sought to uncover would establish nothing more than but-for causation. In other words, he argues he needs discovery
Third, Lissack argues that the record before the Tax Court was inadequate. Amici agree. They contend that the statute contemplates trial de novo in the Tax Court. They argue the text, context, and drafting history of the statute so require. Lissack and amici point out that confining judicial review to the administrative record is anomalous here because the Whistleblower Office makes the records of its award determinations without adjudicatory procedures, public comment, or other opportunity for stakeholders—including the whistleblower—to be heard. Amicus Whistleblower 11099-13W also contends that judicial deference to the Whistleblower Office is inappropriate because the Office‘s determinations involve no “technically complex issue within an agency‘s unique expertise,” only the kind of matter “that courts are called upon to resolve every day.” Amicus Whistleblower 11099-13W Br. 10-11.
We need not here decide whether the Tax Court must conduct a trial de novo on an appeal of a Whistleblower Office determination, nor what standard of review applies to a challenge to the scope of the record the IRS submitted to the Tax Court, because Lissack made no request before the Tax Court to expand the administrative record or create a new one. If Lissack believed the record was inadequate, he should have sought to compel production of documents to supplement the record, but he concedes he failed to do so. Reply Br. 25-27.
Lissack counters that he should not have had to do so, because he moved only for partial summary judgment on his legal challenge to the Whistleblower Definitions Rule, anticipating that “resolution of that issue would dictate whether [he] needed to get into a long discovery fight.” Id. at 25. But, as the Tax Court explained when rejecting his motion for reconsideration, even after that court granted the IRS‘s cross-motion for summary judgment Lissack did not seek supplementation of the administrative record, nor did he “identif[y] any gaps in the administrative record” (nor, for that matter, did he point to any information in his own whistleblower submission) that “was relevant to the bad debt deduction issue.” J.A. 369. In view of Lissack‘s failure to preserve the point, we affirm the Tax Court‘s decision to base its review on the portions of the administrative record the IRS compiled and submitted as relevant.
As the Tax Court acknowledged, some whistleblower claims may require discovery and judicial factfinding. But even had he not forfeited the point, Lissack has not shown that he was deprived of any material evidence. Again, on Lissack‘s own account, the factual point he sought to bolster was but-for causation. But “[h]ow the revenue agent discovered” the intercompany
In sum, the Tax Court correctly concluded that “the record provides more than enough evidence to confirm that petitioner is not eligible for a mandatory award,” and ruled in favor of the IRS as a matter of law. Lissack, 157 T.C. at 78. The Tax Court credited information in the administrative record showing that “none of the adjustments had anything to do with the membership deposits issue,” including the revenue agent‘s report that Lissack “had not ‘provided any information for the adjusted issues,‘” and the Whistleblower Office analyst‘s confirmation that Lissack “had made no allegations and submitted no facts related to [the development group‘s] intercompany debt (or any other adjustment).” Id. at 66. Lissack failed to challenge before the Tax Court its reliance on the administrative record or object to the scope of that record, and even now he does not identify information he would have sought that could have created a material factual dispute precluding summary judgment.
* * *
For the foregoing reasons, we reinstate our decision affirming the judgment of the Tax Court.
So ordered.