WHISTLEBLOWER 11332–13W, PETITIONER v.
COMMISSIONER OF INTERNAL REVENUE,
RESPONDENT
Docket No. 11332–13W. Filed June 4, 2014.
Whistleblower W reported a tax fraud scheme, involving
W’s employer and related entities, to the Government. W pro-
vided the Government with information regarding the tax
fraud scheme from June 2006 through the fall of 2009. W’s
information formed the basis of the Government’s action
against the target taxpayers. W filed a Form 211, Application
for Award for Original Information, in 2008 and submitted to
R documentary evidence related to W’s involvement in the
Government’s investigation. W resubmitted Form 211 in 2011
seeking an award under I.R.C. sec. 7623(b). Shortly there-
after, the Government settled with one of the target taxpayers
and recovered more than $30 million in taxes, penalties and
interest. R granted W a discretionary award determination
under I.R.C. sec. 7623(a) and denied W’s request for an award
under I.R.C. sec. 7623(b). W filed the petition seeking review
of R’s award determination. R filed a motion to dismiss for
lack of jurisdiction. R argues that this Court lacks jurisdiction
to review R’s award determination because R proceeded
against the target taxpayers using information W provided
before the effective date of I.R.C. sec. 7623(b), Dec. 20, 2006.
W opposes R’s motion on the grounds that W provided
information to the Government both before and after the
effective date of I.R.C. sec. 7623(b). Held: The Court has juris-
diction to review R’s whistleblower claim award determina-
tions where W has alleged that W provided information to R
before and after the effective date of I.R.C. sec. 7623(b). Held,
further, W satisfied W’s pleading burden by alleging facts that
R proceeded with an action against the target taxpayers using
information brought to R’s attention by W both before and
after the effective date of I.R.C. sec. 7623(b), Dec. 20, 2006.
Held, further, R’s motion to dismiss will be denied.
Sealed, for petitioner.
Sealed, for respondent.
OPINION
KROUPA, Judge: This case 1 is before the Court on respond-
ent’s motion to dismiss for lack of jurisdiction. We decide for
the first time whether the Court has jurisdiction to review
1 This Court previously granted the whistleblower’s motion to seal the
record in this case and motion to proceed anonymously.
396
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(396) WHISTLEBLOWER 11332–13W v. COMMISSIONER 397
respondent’s whistleblower claim award determinations
where the whistleblower provided information both before
and after the enactment of the Tax Relief and Health Care
Act of 2006 (TRHCA), 2 Pub. L. No. 109–432, div. A, sec. 406,
120 Stat. at 2958, effective December 20, 2006. We hold that
we do. 3
Background
The following background is drawn from the petition and
respondent’s motion to dismiss for lack of subject matter
jurisdiction and responses filed by both parties. We note that
the background is stated solely for purposes of ruling on the
pending motion to dismiss and is not a finding of facts.
Petitioner is a whistleblower that reported a tax fraud
scheme to the Government. During the whistleblower’s
employment, the whistleblower learned of a tax structure
involving the whistleblower’s employer and several related
entities and subsidiary companies (targets). When the
whistleblower raised concerns over the tax structure to the
whistleblower’s employer, the whistleblower’s employer used
physical force and armed men to intimidate the whistle-
blower and prevent disclosure. The whistleblower was subse-
quently fired. In 2005 the whistleblower attempted to report
the tax scheme to the Government. The whistleblower’s
efforts were met with no response. The whistleblower eventu-
ally reached Government officials interested in the whistle-
blower’s information. In June 2006 the whistleblower met
informally with Department of Justice (DOJ) representatives
in Washington, D.C., regarding the tax scheme. The whistle-
blower provided the DOJ representatives with generic
information regarding the targets and the tax scheme at this
first meeting. The whistleblower met with the Internal Rev-
enue Service (IRS) and the DOJ representatives several more
times in the summer and fall of 2006. At each meeting the
2 Tax
Relief and Health Care Act of 2006, Pub. L. No. 109–432, div. A,
sec. 406, 120 Stat. at 2958, codified at sec. 7623(b).
3 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 Prac-
tice and Procedure, unless otherwise indicated. All amounts are rounded
to the nearest dollar.
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398 142 UNITED STATES TAX COURT REPORTS (396)
whistleblower provided additional documents and details
regarding the tax scheme.
The whistleblower continued to provide additional informa-
tion regarding the targets’ activities and was in regular con-
tact with the IRS and the DOJ representatives after
December 20, 2006. On multiple occasions, the IRS and the
DOJ representatives asked the whistleblower for informa-
tion, after December 2006, related to particular areas of
inquiry and details regarding transactions and the targets.
As the whistleblower learned additional information
regarding the targets’ actions, the whistleblower reported
that information to the IRS and the DOJ representatives.
The whistleblower provided information to the IRS and the
DOJ representatives continually until the fall of 2009.
Notably, the whistleblower’s assistance in this investigation
jeopardized the safety of the whistleblower and the whistle-
blower’s family. As discussed in detail in Whistleblower
11332–13W v. Commissioner, T.C. Memo. 2014–92, the
whistleblower received several threats of physical harm from
the targets.
The whistleblower filed a Form 211, Application for Award
for Original Information, in 2008 and submitted to the IRS
Whistleblower Office (Whistleblower Office) documentary evi-
dence related to the targets’ actions that the whistleblower
had previously disclosed. Subsequently, the whistleblower
resubmitted Form 211 in 2011 seeking an award under sec-
tion 7623(b). Shortly thereafter, the Government entered into
a Non-Prosecution Agreement with one of the targets that
led to the Government recovering more than $30 million in
taxes, penalties and interest. The Whistleblower Office
granted the whistleblower a discretionary award determina-
tion under section 7623(a) and denied the whistleblower’s
request for an award under section 7623(b).
The whistleblower timely filed the petition seeking review
of respondent’s award determination. Respondent filed a
motion to dismiss for lack of jurisdiction on the ground that
respondent’s award determination is not subject to judicial
review. Respondent argues that this Court lacks jurisdiction
to review respondent’s award determination because he pro-
ceeded against the targets using information the whistle-
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(396) WHISTLEBLOWER 11332–13W v. COMMISSIONER 399
blower provided before the effective date of section 7623(b), 4
December 20, 2006. 5 The whistleblower objected to the
motion, asserting that the whistleblower is entitled to
judicial review of respondent’s award determination because
the whistleblower provided information both before and after
the effective date of section 7623(b). We agree with the
whistleblower. We leave for another day whether the whistle-
blower is entitled to a larger award.
Discussion
This case presents an issue of first impression. We decide
for the first time whether the Court has jurisdiction to
review respondent’s whistleblower claim award determina-
tion where the claim is based on information the whistle-
blower provided both before and after the enactment of
TRHCA sec. 406, 120 Stat. at 2958. 6
I. Overview of the Court’s Jurisdiction and the Whistleblower
Program
We begin with the Tax Court’s jurisdiction. The Tax Court
is a court of limited jurisdiction and may exercise jurisdiction
only to the extent authorized by Congress. Judge v. Commis-
sioner, 88 T.C. 1175, 1180–1181 (1987); Naftel v. Commis-
sioner, 85 T.C. 527, 529 (1985). The Tax Court is without
authority to enlarge upon that statutory grant. See Phillips
Petroleum Co. v. Commissioner, 92 T.C. 885, 888 (1989). We
nevertheless have jurisdiction to determine whether we have
jurisdiction. Hambrick v. Commissioner, 118 T.C. 348 (2002);
Pyo v. Commissioner, 83 T.C. 626, 632 (1984); Kluger v.
Commissioner, 83 T.C. 309, 314 (1984).
Our Rules are silent as to deciding a motion to dismiss for
lack of subject matter jurisdiction. Thus, we look to the Fed-
eral Rules of Civil Procedure. See Rule (1)(b); Estate of Miller
v. Commissioner, T.C. Memo. 1994–25. When deciding a
motion to dismiss based on lack of subject matter jurisdic-
4 As discussed infra, sec. 7623(b)(4) for the first time granted this Court
jurisdiction to hear a whistleblower’s petition for review of the Commis-
sioner’s award determination.
5 The amendments enacting sec. 7623(b) apply to information provided
on or after December 20, 2006.
6 Codified, in part, at sec. 7623(b).
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400 142 UNITED STATES TAX COURT REPORTS (396)
tion, a court must construe the undisputed allegations of the
complaint in a manner favorable to the plaintiff. See Dacosta
v. United States, 82 Fed. Cl. 549, 552 (2008). Where jurisdic-
tion turns on contested facts, allegations in the petition are
generally taken as true for purposes of deciding a motion to
dismiss for lack of jurisdiction. See, e.g., O’Brien v. Commis-
sioner, 40 B.T.A. 280 (1939). The issue is whether the claim-
ant is entitled to offer evidence to support the claims, not
whether the claimant will ultimately prevail on the merits.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also
Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746,
747 (Fed. Cir. 1988). We turn now to an overview of our
jurisdiction regarding whistleblower claims.
The Secretary has long had the discretion to pay awards
to persons providing information that aids in (1) detecting
underpayments of tax and (2) detecting and bringing to trial
and punishment persons guilty of violating the internal rev-
enue laws. Sec. 7623(a). The discretionary whistleblower
awards have been arbitrary and inconsistent, however,
because of a lack of standardized procedures and limited
managerial oversight. See Treasury Inspector General for
Tax Administration Report 2006–30–092, The Informants’
Rewards Program Needs More Centralized Management
Oversight (June 2006). It took an average of seven years for
a discretionary award to be paid and an average of six
months for a claim to be rejected. Id. at 8–9. Moreover, most
rejected claims did not provide the rationale for the
reviewer’s decision because of concerns about disclosing con-
fidential return information to the whistleblower. Id. at 7.
Congress enacted TRHCA in 2006 to address perceived
problems with the discretionary award regime. TRHCA sec.
406(a), 120 Stat. at 2958, amended section 7623 to require
the Secretary to pay nondiscretionary whistleblower awards
under certain circumstances and to provide this Court with
jurisdiction to review such award determinations. A whistle-
blower is now entitled to a minimum nondiscretionary award
of 15% of the collected proceeds if the Commissioner proceeds
with administrative or judicial action using information pro-
vided in a whistleblower claim. 7 Sec. 7623(b)(1).
7 The award is reduced in certain circumstances. For example, the award
is reduced where the whistleblower planned or initiated the actions that
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(396) WHISTLEBLOWER 11332–13W v. COMMISSIONER 401
TRHCA also directed the Secretary to issue guidance for
the operation of a Whistleblower Office administered by the
IRS. 8 TRHCA sec. 406(b)(1), 120 Stat. at 2959. The Whistle-
blower Office is responsible for reviewing submitted whistle-
blower claims or assigning them to the appropriate IRS office
for review. Id. sec. 406(b)(1)(B), 120 Stat. at 2960. The
Whistleblower Office is authorized to seek additional assist-
ance from the whistleblower if necessary. Id. sec.
406(b)(1)(C), (2).
The Commissioner released guidance to taxpayers on filing
nondiscretionary whistleblower award claims in early 2008.
See Notice 2008–4, 2008–1 C.B. 253. Whistleblowers seeking
an award must fully complete and submit a Form 211. Id.
sec. 3.02, 2008–1 C.B. at 254. The Whistleblower Office will
acknowledge receipt of the claim in writing. Id. sec. 3.05,
2008–1 C.B. at 255. The Whistleblower Office will send cor-
respondence to the whistleblower once a determination
regarding the claim has been made. Id. sec. 3.11, 2008–1
C.B. at 256. Whistleblower Office determinations regarding
awards may be appealed to this Court within 30 days from
the issuance of the nondiscretionary award determination.
Id.; see also sec. 7623(b)(4). Awards will not be paid, how-
ever, until there is a determination of the tax liability and
the amounts owed are collected. Notice 2008–4, sec. 3.08,
2008–1 C.B. at 255. The Commissioner also issued proce-
dural guidance on how whistleblower claims will be proc-
essed. See Internal Revenue Manual (IRM) pt. 25.2.2 (Dec.
30, 2008). 9 In general, whistleblower claims will be denied
where the information provided does not: (a) identify a Fed-
eral tax issue upon which the IRS will act; (b) result in the
detection of an underpayment of taxes; or (c) result in the
led to the underpayment of tax. Sec. 7623(b)(2) and (3). Furthermore, an
award is available only if the individual taxpayer had gross income exceed-
ing $200,000 for any year at issue and if the amount in dispute (including
tax, penalties, additions to tax and additional amounts) exceeds $2 million.
TRHCA sec. 406(a)(1), 120 Stat. at 2958.
8 The 2006 legislation also requires the Secretary to provide an annual
report to Congress on whistleblower claims filed and awards issued under
sec. 7623. TRHCA sec. 406(c), 120 Stat. at 2960.
9 Internal Revenue Manual pt. 25.2.2 (Dec. 30, 2008) was updated on
June 18, 2010, to provide additional guidance for evaluating a whistle-
blower claim.
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402 142 UNITED STATES TAX COURT REPORTS (396)
collection of proceeds. See id. pt. 25.2.2.12(2) (June 18, 2010).
The whistleblower will be notified by the Whistleblower
Office once an award decision has been made. See id. pt.
25.2.2.5(13) (Dec. 30, 2008).
II. Analysis
We must now decide whether the Court has jurisdiction to
review respondent’s award determination. Respondent argues
that this Court does not have jurisdiction to review his
award determination because the whistleblower provided the
information to the Whistleblower Office before the enactment
of section 7623(b). See Wolf v. Commissioner, T.C. Memo.
2007–133 (holding that the Court lacked jurisdiction to
review a determination regarding a whistleblower award
because the information was provided before December 20,
2006). Thus, respondent argues that this Court lacks juris-
diction to review his award determination because he pro-
ceeded against the targets using information the whistle-
blower provided before December 20, 2006. The whistle-
blower argues that this Court has jurisdiction to review
respondent’s award determination because the whistleblower
alleged that respondent proceeded against the targets using
information the whistleblower provided both before and after
December 20, 2006. See sec. 7623(b).
We hold that the whistleblower satisfied the whistle-
blower’s pleading burden by alleging facts that respondent
proceeded with an action against the targets using informa-
tion brought to respondent’s attention by the whistleblower
both before and after December 20, 2006. This is consistent
with TRHCA’s intent to provide whistleblowers with judicial
review of award determinations. We now turn to the gov-
erning law.
A whistleblower who satisfies the requirements of section
7623(b) is entitled to receive at least 15% but no more than
30% of the collected proceeds or from a settlement with the
taxpayer. Additionally, the Commissioner must proceed 10
10 The Commissioner’s proposed regulations explain that the term ‘‘pro-
ceeds’’ includes when ‘‘the IRS initiates a new action that it would not
have initiated, expands the scope of an ongoing action that it
would not have expanded, or continues to pursue an ongoing action that
it would not have continued but for the information provided.’’ 77 Fed.
Reg. 74800 (Dec. 18, 2012).
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(396) WHISTLEBLOWER 11332–13W v. COMMISSIONER 403
with an administrative or judicial action based on informa-
tion brought to the Commissioner’s attention by the whistle-
blower. See sec. 7623(b)(1). The IRM states that action by the
IRS includes the modification of a pending or planned exam-
ination or investigation as a result of information provided
by the whistleblower. IRM pt. 25.2.2 (June 18, 2010).
Additionally, the Tax Court has exclusive jurisdiction over
appeals of award determinations where a whistleblower pro-
vided information both before and after the effective date of
TRHCA. See, e.g., Dacosta, 82 Fed. Cl. at 554 (determining
that the Tax Court had exclusive jurisdiction over the
whistleblower’s claim). The Court of Federal Claims’ decision
in Dacosta is directly on point. In Dacosta the court dis-
missed the case because the court found that the Tax Court
had exclusive jurisdiction over the whistleblower claim and
the court could not transfer the case to the Tax Court. Id. at
557 (referencing 28 U.S.C. sec. 1631). Nevertheless, the
Dacosta court’s analysis and rationale are persuasive. In
Dacosta, as here, the claimants provided the Commissioner
with information both before and after the enactment of
TRHCA. Id. at 551. The Government moved to dismiss for
lack of subject matter jurisdiction and argued that the
information submitted by the claimants in 2007 was identical
to the information submitted in 2003. Id. at 553. The
Government further argued that, even if claimants provided
new and different information, the Commissioner did not
proceed using the later application and documents. Id. The
court rejected the Government’s arguments and determined
that the claimants alleged sufficient facts to avail themselves
of section 7623(b)(1) for jurisdictional purposes. Id. at 554.
The court concluded that the claimants’ alleged facts, if
proven at trial, would establish that the Commissioner acted
on information provided by the claimants after the amend-
ments to section 7623. Id.
The parties dispute whether respondent proceeded against
the targets using the whistleblower’s post-December 20,
2006, information. The whistleblower’s allegations are suffi-
cient to establish jurisdiction. The whistleblower alleged that
the whistleblower provided the IRS and the DOJ with
information from at least June 2006 through the fall of 2009.
The post-December 2006 information was not simply confirm-
atory details. Rather, the whistleblower provided the IRS
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404 142 UNITED STATES TAX COURT REPORTS (396)
and the DOJ with the facts that formed the basis and grava-
men of respondent’s action against the targets. The whistle-
blower alleged that the whistleblower provided the IRS and
the DOJ with information related to particular areas of
inquiry and details regarding the transactions and the tar-
gets.
Taking the contested factual allegations in the petition as
true, they establish that from June 2006 through the fall of
2009 the whistleblower was in constant contact with the IRS
and the DOJ and provided them with the basis of and details
on the targets’ tax avoidance scheme. Whether respondent
used this information to proceed against the targets is not a
question for the present motion. The whistleblower has
alleged sufficient jurisdictional facts to avail the whistle-
blower of section 7623(b)(1) for jurisdictional purposes and to
overcome a motion to dismiss for lack of jurisdiction. If the
whistleblower’s alleged facts are proved at trial, they would
establish that respondent proceeded against the targets
using information the whistleblower provided after December
20, 2006. If these facts are established, the whistleblower is
entitled to judicial review of respondent’s award determina-
tion.
We hold, consistent with the rationale of Dacosta, that this
Court has jurisdiction to review an award determination
where a whistleblower has alleged that the whistleblower
provided information both before and after the enactment of
section 7623(b).
We have considered all remaining arguments the parties
made and, to the extent not addressed, we conclude they are
irrelevant, moot or meritless.
For the foregoing reasons, we shall deny respondent’s
motion to dismiss.
An appropriate order will be issued.
f
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