DAVID T. MYERS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2181-15W.
UNITED STATES TAX COURT
Filed June 5, 2017.
148 T.C. No. 20
P filed with R’s Whistleblower Office (W) a claim for a whistleblower award under
On January 20, 2015, P mailed his petition to the Court, which the Court received and filed on January 26, 2015. R moved to dismiss this case for lack of jurisdiction on the ground that P had failed to file his petition within the 30-day period specified by
Held: Each of W’s letters to P constitutes an appealable determination for purposes of
Held, further, as with a notice of deficiency, where there is direct evidence a claimant received actual notice of an award determination without prejudicial delay and with sufficient time to file a petition, that notice is effective to commence the running of the 30-day period under
Held, further, P received actual notice of W’s determinations without prejudicial delay and had ample opportunity to timely file a petition, yet P filed his petition significantly more than 30 days after receiving actual notice. Hence, P’s petition is untimely and we will dismiss this case for lack of jurisdiction.
David T. Myers, pro se.
David K. Barnes and John T. Arthur, for respondent.
OPINION
ASHFORD, Judge: The petition in this case commenced a whistleblower proceeding pursuant to
notice of objection to respondent’s motion. The parties subsequently supplemented their respective filings, and the Court held a hearing on the motion. At the conclusion of the hearing the Court took respondent’s motion under advisement. After consideration,2 we will grant respondent’s motion and dismiss this case for lack of jurisdiction.
Background
Petitioner resided in California at the time the petition was filed with the Court.
On August 17, 2009, petitioner filed with the Internal Revenue Service (IRS) Whistleblower Office (Whistleblower Office) a Form 211, Application for Award for Original Information, concerning alleged violations of the Internal Revenue Code by his former employer. He asserted that his former employer had intentionally misclassified him and numerous other coworkers as independent contractors in order “to avoid paying workmen compensation [sic], health insurance, vacation time, etc.”
Throughout the rest of 2009, 2010, 2011, and 2012 petitioner frequently communicated with the Whistleblower Office by letter, facsimile, telephone, and email, submitting additional information regarding his claim and seeking updates on the status of his claim. The Whistleblower Office denied petitioner’s claim in a letter dated March 13, 2013, stating:
We have considered your application for an award dated 08/17/2009. Under Internal Revenue Code Section 7623, an award may be paid only if the information provided results in the collection of additional tax, penalties, interest or other proceeds. In this case, the information you provided did not result in the collection of any proceeds. Therefore, you are not eligible for an award.
Although the information you submitted did not qualify for an award, thank you for your interest in the administration of the internal revenue laws.
If you have any further questions in regards to this letter, please feel free to contact the Informant Claims Examination Team at * * *.
In his filings in opposition to respondent’s motion and at the hearing on the motion petitioner acknowledged having received this letter, but he could not recall when he actually received it. However, according to the Whistleblower Office’s computer tracking system known as E-Trak,3 on March 28, 2013, the
Whistleblower Office received a facsimile dated March 27, 2013, from petitioner. In the facsimile petitioner referenced the March 13, 2013, denial letter, stating in pertinent part that “[a]fter three and a half years of having no contact from your office regarding the particulars of my case I inexplicably received a letter denying my claim”.
Petitioner continued to correspond with the Whistleblower Office throughout the rest of 2013 and 2014, sometimes submitting additional material regarding his claim. He sent correspondence to the Whistleblower Office on September 28, November 24, and November 30, 2013, and February 18, February 20, and March 3, 2014.
The Whistleblower Office replied to petitioner in letters dated November 20, 2013, and January 8, February 24, and March 6, 2014. The November 20, 2013, and January 8 and March 6, 2014, letters were identical, each stating:
We considered the additional information you provided and determined your claim still does not meet our criteria for an award. Our determination remains the same despite the information contained in your latest letter.
Please keep in mind the confidentiality of the informants’ claims process and understand that we cannot disclose the facts surrounding an examination, i.e., taxes collected and audit examination.
Although the information you submitted did not qualify for an award, thank you for your interest in the administration of the internal revenue laws.
If you have any further questions in regards to this letter, please feel free to contact the Initial Evaluation Claims at * * *.
This letter is in regard to your correspondence dated February 20, 2014, concerning your claim for award.
We closed your claim for award on March 13, 2013. I am enclosing a copy of the letter for your information.
When we receive allegations of non-compliance, the information is evaluated to determine if an investigation or audit is appropriate. The evaluation considers many factors; however, we cannot share our analysis with you because of the taxpayer privacy provisions of section 6103 of the Internal Revenue Code. At the conclusion of our review, we can only tell you whether the information you provided met the criteria for paying an award. Unfortunately, we cannot give you specific details about what actions we take, if any, because of the privacy laws that protect the tax information of all taxpayers.
I am sorry that my response cannot be more specific. If you have further questions about your claim, please call or write the Whistleblower Office, ICE Team at the above address or phone number.
Thank you for your interest in compliance with the tax laws.
In his filings in opposition to respondent’s motion and at the hearing on the motion petitioner acknowledged having received all of these letters as well.
Although he also could not recall when he had actually received these letters, he never gave any indication that he had not received any of them in a timely fashion.
After the Whistleblower Office’s March 6, 2014, letter, petitioner continued to pursue his claim by directing his further communications not to the Whistleblower Office but instead, out of frustration with that office, to the attention of the IRS Chief Counsel, the Treasury Inspector General for Tax Administration, and other Government officials. In his filings in opposition to respondent’s motion and at the hearing on the motion he acknowledged addressing emails to these officials on 25 different dates commencing on April 11, 2014, and ending on February 12, 2015.
On January 20, 2015, petitioner mailed to the Court a petition he titled “Petition for Whistleblower Action Under Code Section 7623(B)(4) and the Affirmative Defense of Estoppel”, which the Court received and filed on January 26, 2015. The petition contains 22 lettered statements. See Rule 341(b). The only lettered statement where petitioner expresses disagreement with any of the Whistleblower Office’s letters to him is the first; there he mentions solely the letter dated March 13,
denial of my IRS Whistleblower (W/B) claim * * * that was inexcusably denied by the IRS on 3/13/2013.”4
At the hearing on respondent’s motion petitioner testified that he was confused by the Whistleblower Office’s letters and his options for redress, spending “months” pursuing what he referred to as an “administrative claims process”, and was not aware of his ability to appeal to this Court until shortly before he did so. Respondent at the hearing acknowledged that none of the Whistleblower Office’s letters were sent to petitioner via certified mail, in contravention of the directive in Internal Revenue Manual (IRM) pt. 25.2.2.10 (June 18, 2010) in effect when the Whistleblower Office’s letters were sent to petitioner in 2013 and 2014.5 According to respondent, the primary reason for not following this IRM provision was “funding because there’s a lot of costs
associated with certified mail.” Respondent also averred that the relevant statute (i.e.,
Discussion
This Court has jurisdiction only to the extent expressly provided by statute.
Our jurisdiction over whistleblower cases is provided by
from the determination is timely. Whistleblower 26876-15W v. Commissioner, 147 T.C. ___, ___ (slip op. at 6) (Nov. 9, 2016); Comparini v. Commissioner, 143 T.C. 274, 277 (2014); Kasper v. Commissioner, 137 T.C. 37, 41 (2011); see also Rule 340(b). Accordingly, we will address in turn each component of our whistleblower jurisdiction as it pertains to this case.
I. Determination
We have held that there are no particular formal requirements for what constitutes a “determination” by the Whistleblower Office for purposes of
We believe it is appropriate to construe this aspect of our whistleblower jurisdiction broadly particularly because, as with the letters sent to petitioner in this case, the Whistleblower Office typically does not include in such letters any information regarding a claimant’s right to appeal to this
The Whistleblower Office sent five letters to petitioner over nearly 12 months in 2013 and 2014 regarding his claim. Respondent suggests in his motion
and argued at the hearing on his motion that only the March 13, 2013, letter reflects a “determination” under
The Whistleblower Office’s March 13, 2013, letter to petitioner stated in pertinent part that the Whistleblower Office had considered his claim and that he was not eligible for an award as “the information you provided did not result in the collection of any proceeds.” See Cooper v. Commissioner, 135 T.C. at 72-76 (holding letter constituted an appealable “determination” for purposes of
subsequent four letters sent to petitioner in 2013 and 2014 similarly contain statements addressing the merits of his claim. The November 20, 2013, and January 8 and March 6, 2014, letters stated in pertinent part that the Whistleblower Office had considered the additional information petitioner provided and that the Office’s “determination remains the same”; to wit, petitioner’s claim still did not meet the criteria for an award. See Comparini v. Commissioner, 143 T.C. at 276, 279 (holding 2013 letter containing identical wording constituted an appealable “determination” for purposes of
II. Timeliness
Given this finding, we now consider whether petitioner timely filed his petition. As stated supra p. 9, to invoke the Court’s jurisdiction, a claimant must appeal the amount or denial of an award to this Court within 30 days of such a determination by the Whistleblower Office. See also Friedland v. Commissioner (Friedland II), T.C. Memo. 2011-217, slip op. at 3 (citing Friedland I and
In Kasper v. Commissioner, 137 T.C. at 45, we held that the 30-day period under
More recently, we reiterated this standard in Allibone v. Commissioner, T.C. Memo. 2016-91, at *4-*5. In each case, in interpreting this standard, we held that testimony of custom or evidence of standard business practice (i.e., the testimony or declaration of Whistleblower Office employees, together with a copy of the Whistleblower Office’s E-Trak records), standing alone, is not sufficient direct evidence of mailing. Kasper v. Commissioner, 137 T.C. at 45; Allibone v. Commissioner, at *5. However, we had no occasion in either case to address whether notice to a claimant would be effective, and thus the 30-day period under
That principle originates from our deficiency jurisprudence. See, e.g., Mulvania v. Commissioner, 81 T.C. 65, 69 (1983); see also Crum v. Commissioner, 635 F.2d 895, 901 (D.C. Cir. 1980) (“[T]he time period for filing the petition for redetermination did not commence until * * * [the taxpayer] received actual notice of the deficiency[.]”). In Friedland II, slip op. at 4, we expressed approval for applying this principle to whistleblower cases, holding that the denial letter to the claimant there, which was dated and purportedly mailed March 3, 2011, was effective because he acknowledged receipt of that letter on
March 11, 2011, when he called the
[T]he March 3 determination was received no later than March 11, 8 days after the purported mailing. Petitioner thus received actual notice and had ample opportunity to timely file a petition. Even if the Court were to consider the time to file a petition to run from the date of actual receipt (no later than March 11), the petition in this case mailed April 12 (31 days after receipt) would still be untimely since it is outside the 30-day period. * * * [Id. at 4-5.]
Cf. Allibone v. Commissioner, at *6 (rejecting Commissioner’s argument that Whistleblower Office’s employee’s phone call to claimant’s counsel placed claimant on actual notice that denial letter was mailed on a date certain giving him sufficient time to file a petition because “at best” the call reflected employee’s belief that the letter “had been or would be mailed but is not direct evidence of mailing”).
We hold that this principle from our deficiency jurisprudence applies to whistleblower cases. Hence, we must determine here whether there is sufficient
direct evidence in the record of (1) the date and fact of mailing or personal delivery of each of the five letters from the Whistleblower Office to petitioner, or (2) petitioner’s having received actual notice of each of these letters without prejudicial delay and with sufficient time to file a petition.
At the hearing on his motion respondent admitted that the Whistleblower Office did not send any of the five letters to petitioner by certified mail.9 Seeking to prove the date and
with the statements in her declaration. This evidence, standing alone, is insufficient to satisfy the Kasper standard.
There is, however, direct evidence in the record before us that petitioner received actual notice of these letters without prejudicial delay and with sufficient time to file a petition. In his filings in opposition to respondent’s motion and at the hearing on the motion petitioner admitted without reservation receiving each letter. Although he could not recall exactly when he received each letter, it is clear that he did so shortly after their dates. The record includes a copy of the facsimile from petitioner dated March 27, 2013 (which he admitted sending), in which he acknowledged receipt of the March 13, 2013, letter. Petitioner also did not dispute that after receiving the letters dated November 20, 2013, and January 8 and February 24, 2014, he promptly continued his correspondence with the Whistleblower Office (on November 24 and November 30, 2013, and February 18, February 20, and March 3, 2014), and that after the Whistleblower Office’s March 6, 2014, letter, he promptly continued to correspond with various other Government officials on account of his frustration with the Whistleblower Office, commencing with an email to those officials on April 11, 2014. In the light of petitioner’s admissions, we find that he received and thus had actual notice of all of the Whistleblower Office’s letters by no later than April 11, 2014. Yet despite
having ample opportunity to timely file a petition, he did not do so until January 26, 2015, 290 days after April 11, 2014.10
We have considered all of the arguments made by the parties and, to the extent they are not addressed herein, we find them to be moot, irrelevant, or without merit.
To reflect the foregoing,
An order of dismissal for lack of
jurisdiction will be entered.