T.C. Memo. 2011-217
UNITED STATES TAX COURT
MURRAY S. FRIEDLAND, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8816-11W. Filed September 7, 2011.
Murray S. Friedland, pro se.
Navid Mehrjou, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This case is before
the Court on respondent’s motion to dismiss for lack of
jurisdiction. The issues before the Court are: (1) Whether
petitioner timely filed a petition disputing the Whistleblower
Office’s determination to deny him an award and (2) if petitioner
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timely filed a petition, whether his claim meets the monetary
threshold requirement of section 7623(b).1
Background
Petitioner resided in New York at the time he filed the
petition.
On or about January 24, 2011, petitioner filed a Form 211,
Application for Award for Original Information, with respondent’s
Whistleblower Office. The Whistleblower Office denied
petitioner’s whistleblower claim in a letter dated March 3, 2011,
(the March 3 determination). Petitioner acknowledged receipt of
the March 3 determination on March 11, 2011, when he called the
IRS to dispute denial of his claim. The Whistleblower Office
subsequently mailed two additional letters to petitioner, dated
March 23 and April 11, 2011, both of which affirmed the March 3
determination. The March 23, 2011, letter responded to a letter
from petitioner dated March 14, 2011, asking the IRS to
reconsider the March 3 determination denying his whistleblower
claim. The April 11, 2011, letter responded to a telephone call
from petitioner.2 The petition arrived at the Court and was
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at all relevant times, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
2
The record does not reflect whether the Apr. 11, 2011,
letter was in response to petitioner’s Mar. 11, 2011, phone call
or another phone call petitioner made to the IRS.
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filed April 13, 2011. The petition was sent in a FedEx Express
envelope bearing a FedEx Standard Overnight label with a ship
date of April 12, 2011.
Discussion
To invoke the Court’s jurisdiction, an individual must
appeal the amount or denial of an award to this Court within 30
days of such a determination by the Whistleblower Office. Sec.
7623(b)(4); Friedland v. Commissioner, T.C. Memo. 2011-90. The
30-day period begins on the date of mailing or personal delivery
of the determination to the whistleblower at his last known
address. Kasper v. Commissioner, 137 T.C ___, ___ (2011) (slip
op. at 14). If the March 3 determination was mailed to
petitioner at his last known address on March 3, 2011, the 30-day
period for filing a timely petition with the Court under section
7623(b)(4) expired on April 4, 2011.3
Respondent relies upon the March 3, 2011, date to commence
the period for petitioner to file a timely petition. Respondent
has not offered any evidence of the date and fact of mailing.
See Kasper v. Commissioner, supra at ___ (slip op. at 14) (citing
Magazine v. Commissioner, 89 T.C. 321, 326 (1987) (with reference
to a notice of deficiency, the Commissioner must “prove by direct
3
The 30th day was Apr. 2, 2011, a Saturday. The final date
to petition the Tax Court in this case which was not a Saturday,
Sunday, or legal holiday was Monday, Apr. 4, 2011. See sec.
7503; Rule 25(a).
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evidence the date and fact of mailing the notice to a
taxpayer”)). However, there is some evidence of delivery of the
notice to petitioner.
In the context of a notice of deficiency, where a taxpayer
receives actual notice without prejudicial delay and with
sufficient time to file a petition, the Court has found that the
notice is effective. Mulvania v. Commissioner, 81 T.C. 65, 69
(1983); see also Filosa v. Commissioner, T.C. Memo. 1993-615.
Petitioner acknowledges receipt of the March 3 determination as
of March 11, 2011, when he called the IRS to dispute the
determination. Thus we conclude that the 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
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untimely since it is outside the 30-day period.4 See sec.
7623(b)(4).
In his response, petitioner asserts the March 23, 2011,
letter is the “determination” and the petition was thus filed
timely. Contrary to petitioner’s argument, however, the March 3
letter constituted the determination because it was a final
administrative decision regarding his whistleblower claim. See
Cooper v. Commissioner, 135 T.C. 70 (2010); see also Kasper v.
Commissioner, supra at ___ (slip op. at 8); Friedland v.
Commissioner, supra. In Friedland, we dealt with a substantially
identical situation involving multiple Whistleblower Office
letters issued to a whistleblower. We concluded:
Here, * * * [the whistleblower] received four
letters from the Whistleblower Office. The first
letter denied * * * [the whistleblower’s]
whistleblower claim. The subsequent three letters
merely reaffirmed the initial determination in the
first letter. Moreover, the Whistleblower Office
stated in a letter to petitioner that he would have
to appeal the determination through the court
system, not the Whistleblower Office. Accordingly,
we find that * * * [the first Whistleblower
Office] letter to * * * [the whistleblower]
4
In the notice of deficiency context, when the date of
mailing of a notice cannot be proven, some Courts of Appeals have
held that the time to file a petition in response to the notice
would begin to run from the date of receipt. Powell v.
Commissioner, 958 F.2d 53, 57 (4th Cir. 1992); McPartlin v.
Commissioner, 653 F.2d 1185, 1192 (7th Cir. 1981); Crum v.
Commissioner, 635 F.2d 895, 901 (D.C. Cir. 1980). Other Courts
of Appeals have held that if the notice was received with ample
time to file a petition, the notice was effective from the date
of mailing. Pugsley v. Commissioner, 749 F.2d 691, 692-693 (11th
Cir. 1985).
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constituted a determination within the meaning of
section 7623(b)(4). * * *
Friedland v. Commissioner, supra. Similarly, the March 3 letter,
the first letter in the instant case, constituted a determination
under section 7623(b)(4), and the petition in this case was not
filed timely. See sec. 7623(b)(4); see also Kasper v.
Commissioner, supra at ___ (slip op. at 8); Friedland v.
Commissioner, supra.5
In his response, petitioner alleges for the first time that
the Whistleblower Office erroneously advised him in writing to
appeal the denial of his claim to the Court of Federal Claims.
A review of the record shows no such written advice.6
5
Petitioner was also the whistleblower in Friedland v.
Commissioner, T.C. Memo. 2011-90. Pursuant to the Court’s
holding, as set forth at T.C. Memo. 2011-90, the Court entered an
order of dismissal for lack of jurisdiction in that case at
docket No. 13926-10W on Apr. 27, 2011. An examination of the
Court’s record at docket No. 13926-10W shows petitioner’s
whistleblower claim at docket No. 13926-10W is separate and
distinct from the whistleblower claim in the instant case.
6
It appears petitioner was advised in writing to appeal a
different whistleblower claim to the Court of Federal Claims in
docket No. 13926-10W, which is not at issue in this case.
Petitioner argues in this case that the earlier erroneous advice
regarding another whistleblower claim constitutes a “penalty”
imposed upon him which the IRS must abate pursuant to sec.
6404(f). The IRS has not assessed a penalty against petitioner.
We have no jurisdiction to abate a penalty which has not been
assessed, nor do we have jurisdiction over a failure by the IRS
to abate a penalty which has not been assessed. See sec.
6404(h). Sec. 6404(f) affords petitioner no assistance in this
case.
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As noted in Friedland and other cases cited therein, this
Court’s jurisdiction is strictly statutory, and estoppel cannot
create jurisdiction where none exists. We cannot expand our
jurisdiction, even where the Commissioner provided bad advice.
Friedland v. Commissioner, T.C. Memo. 2011-90 (citing Schoenfeld
v. Commissioner, T.C. Memo. 1993-303).
On the basis of the foregoing, the Court concludes that the
petition was not timely filed. Therefore, we need not reach the
issue of whether petitioner’s claim met the monetary threshold
requirement of section 7623(b).
To reflect the foregoing, the Court will grant respondent’s
motion to dismiss for lack of jurisdiction.
An appropriate order of
dismissal will be entered.