147 T.C. No. 12
UNITED STATES TAX COURT
WHISTLEBLOWER 26876-15W, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26876-15W. Filed November 9, 2016.
P filed with the IRS Whistleblower Office Form 211, Applica-
tion for Award for Original Information, with respect to TP1. R com-
menced an examination of TP1’s returns but eventually closed the ex-
amination with no change. On May 29, 2014, W, the Director of the
Whistleblower Office, executed Form 11369, Confidential Evaluation
Report on Claim for Award, approving the denial of P’s claim on the
ground that no proceeds had been collected. On May 30, 2014, R
mailed to P a final determination letter, signed by a member of W’s
staff, informing P that his claim had been denied. This letter was not
mailed to P’s last known address, and he never received it.
In September 2015 P contacted the Whistleblower Office seek-
ing an update on his claim. On October 15, 2015, R mailed P a letter
informing him that his claim had been closed and attached a copy of
the May 30, 2014, letter. P filed his petition on October 26, 2015.
On July 1, 2016, P filed a motion to dismiss for lack of jurisdiction,
arguing that the final determination letter was “null and void” be-
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cause it was not signed by W, in alleged violation of Delegation
Order 25-7 (Rev. 1).
1. Held: W properly exercised his authority under Delegation
Order 25-7 when he executed Form 11369 approving the denial of P’s
claim for an award. Nothing in that delegation order (or anywhere
else) required that W personally sign the letter informing P that his
claim had been denied.
2. Held, further, the May 30, 2014, determination letter as ori-
ginally mailed to P was invalid because it was not mailed to P’s last
known address and P did not actually receive it.
3. Held, further, P timely filed his petition because he filed it
within 30 days of October 15, 2015, the date on which the notice of
determination was properly remailed to him.
[Sealed], for petitioner.
David K. Barnes, for respondent.
OPINION
LAUBER, Judge: This whistleblower award case is currently before the
Court on petitioner’s motion to dismiss for lack of jurisdiction. With respect to
nondiscretionary whistleblower awards, section 7623(b)(4) provides: “Any deter-
mination regarding an award * * * may, within 30 days of such determination, be
appealed to the Tax Court (and the Tax Court shall have jurisdiction with respect
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to such matter).”1 Petitioner contends that the decision by the Internal Revenue
Service (IRS) to deny him an award was “null and void,” with the supposed result
that the IRS has not yet made a “determination regarding an award” that could
give rise to jurisdiction in this Court. We find no merit in petitioner’s argument,
and we conclude that he filed his petition within the 30-day period prescribed by
section 7623(b)(4). We will accordingly deny his motion to dismiss for lack of
jurisdiction.
Background
The following facts are derived from the parties’ pleadings and motion pa-
pers, including the affidavits and exhibits attached thereto. In February 2009 peti-
tioner filed with the IRS Whistleblower Office (Office) Form 211, Application for
Award for Original Information.2 The Form 211 contained allegations regarding
various taxpayers, including Taxpayer 1. The Office reviewed petitioner’s claim
1
All statutory references are to the Internal Revenue Code in effect at the
relevant times.
2
The Court granted petitioner’s motion to proceed anonymously. When re-
ferring to petitioner, we will employ the masculine pronoun and possessive adjec-
tive without intending to create any implication concerning petitioner’s gender.
We will use the term “Taxpayer 1” to refer to the taxpayer who was subject of
petitioner’s award claim, and we will use the terms State 1 and State 2 to refer to
the States in which petitioner resided at various times.
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and forwarded it to appropriate personnel in the IRS Large Business and Interna-
tional Division.
The IRS commenced an examination of Taxpayer 1’s returns and initially
proposed adjustments. However, respondent represents that the IRS Office of
Appeals fully conceded these adjustments. The record includes an Appeals
Transmittal and Case Memo dated November 5, 2013, reporting that the examina-
tion of Taxpayer 1 had been “closed” with “no change.”
In January 2014 a senior tax analyst in the Office, Kimberlee Loren, com-
pleted Form 11369, Confidential Evaluation Report on Claim for Award, recom-
mending that petitioner’s claim be denied. Stephen A. Whitlock, the Director of
the Office, executed this form on May 29, 2014. Above his signature, in a box
captioned “Percentage Recommended,” the figure “0%” appears.
On May 30, 2014, the IRS sent petitioner a final determination letter in-
forming him that his claim had been denied. This letter, signed by Ms. Loren,
stated as follows:
[A]n 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 did not result
in the collection of any proceeds. Therefore, you are not
eligible for an award.
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Petitioner alleges that he never received the May 30, 2014, letter. That let-
ter was addressed to him at an address in State 1. He alleges that he had moved in
June 2013 to an address in State 2; that he had properly notified the Office of his
new address; and that he had “received assurances from the * * * [Office] that his
address had been properly updated” in the IRS computer system. In his response
to the motion to dismiss, respondent does not dispute any of these allegations.
In September 2015 petitioner wrote the Office seeking an update on his
claim. Ms. Loren responded to him at his correct address by letter dated October
15, 2015; she informed him that his claim had been closed and attached a copy of
her May 30, 2014, letter. Petitioner alleges that this October 2015 letter was the
first notice he received that the Office had denied his claim for an award. Respon-
dent does not dispute this allegation.
Petitioner treated the October 15, 2015, letter as a denial of his claim and
filed a petition with this Court on October 26, 2015. On July 1, 2016, petitioner
filed a motion to dismiss this case for lack of jurisdiction. On August 12, 2016,
respondent filed a response opposing the motion to dismiss.
Discussion
The Tax Court is a court of limited jurisdiction, and we must ascertain whe-
ther the case before us is one that Congress has authorized us to consider. See sec.
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7442; Estate of Young v. Commissioner, 81 T.C. 879, 881 (1983). In determining
whether we have jurisdiction over a given matter, this Court and the Courts of Ap-
peals have given our jurisdictional provisions a broad, practical construction rather
than a narrow, technical one. Lewy v. Commissioner, 68 T.C. 779, 781 (1977).
When a statute is capable of two interpretations, “we are inclined to adopt a con-
struction which will permit us to retain jurisdiction without doing violence to the
statutory language.” Traxler v. Commissioner, 61 T.C. 97, 100 (1973).
This Court has jurisdiction under section 7623(b)(4) if the IRS makes a “de-
termination regarding an award” and “a petition invoking our jurisdiction over that
matter is timely filed.” Comparini v. Commissioner, 143 T.C. 274, 277 (2014). In
urging that we lack jurisdiction, petitioner contends that the IRS has not yet made
a “determination regarding an award” because the May 30, 2014, letter denying
his claim was “ultra vires” and “null and void.”
Under Delegation Order 25-7 (Rev. 1), Internal Revenue Manual pt.
1.2.52.8(2) and (3) (July 1, 2008), the Commissioner has delegated to the Director
of the Office the authority to approve or disapprove awards under section 7623.
Petitioner notes that the May 30, 2014, determination letter was signed by Ms.
Loren, not by Mr. Whitlock, the Director of the Office at the time. Because this
letter was allegedly signed by the wrong person, petitioner contends that it did not
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constitute a “determination regarding an award” sufficient to give us jurisdiction.
And because the October 15, 2015, letter simply attached a copy of the (allegedly
invalid) May 30, 2014, letter, petitioner urges that it did not constitute a proper
“determination” either. Cf. Cooper v. Commissioner, 135 T.C. 70, 76 (2010)
(holding that an IRS communication constitutes a “determination” for purposes of
section 7623(b)(4) if it is a final administrative decision “issued in accordance
with the established procedures”).
We find no merit in this argument. Delegation Order 25-7 delegated to Mr.
Whitlock the authority to approve or disapprove awards under section 7623. Mr.
Whitlock exercised that authority on May 29, 2014, when he signed the Form
11369 adopting his staff’s recommendation that petitioner’s claim be disallowed in
full because no “proceeds” had been collected. The following day, the Office sent
petitioner a final determination letter informing him of this decision. There is
nothing in Delegation Order 25-7 (or anywhere else) that required this letter to be
signed by Mr. Whitlock personally rather than by a member of his staff.
Although we reject petitioner’s argument that the determination to deny his
claim was “ultra vires,” we must still consider whether he filed his petition within
the 30-day period specified in section 7623(b)(4), which sets forth a jurisdictional
requirement. See Comparini, 143 T.C. at 277; Cooper, 135 T.C. at 73-74. Gener-
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ally, the 30-day period to file a whistleblower petition begins on the date on which
the IRS determination letter is sent to the claimant’s last known address or person-
ally delivered to him. See Kasper v. Commissioner, 137 T.C. 37, 45 (2011). Peti-
tioner did not petition this Court within 30 days of the May 30, 2014, determina-
tion letter. However, that letter was not sent to his last known address, and re-
spondent does not dispute petitioner’s averment that he never received it.3 The
May 30, 2014, determination letter was later re-mailed to petitioner on October 15,
2015; he received that letter and petitioned this Court 11 days thereafter. We must
decide whether a petition filed under these circumstances was timely filed.
Although we do not appear to have faced a question of this sort in prior
whistleblower cases, we have confronted it frequently in our deficiency jurispru-
3
When deciding a motion to dismiss for lack of jurisdiction, we construe the
undisputed allegations of the petition in a manner favoring a finding of jurisdic-
tion. See, e.g., Whistleblower 11332-13W v. Commissioner, 142 T.C. 396, 400
(2014). If jurisdiction 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. Ibid. In his petition, petitioner avers that the May 30, 2014, letter
“was addressed incorrectly to Petitioner at his former address.” He alleges that he
notified the Office of his changed address and “received assurances from the * * *
[Office] that his address had been properly updated” in the IRS computer system.
In his response to the motion to dismiss, respondent does not dispute any of these
allegations or contend that he mailed the May 30, 2014, letter to petitioner’s last
known address. In the absence of any evidence to the contrary, we find that the
determination letter, as originally mailed to petitioner on May 30, 2014, was not
sent to his last known address.
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dence and (more recently) in collection due process (CDP) cases. The latter cases
seem particularly apposite here because the jurisdictional provisions are quite
similar. Section 7623(b)(4) provides that “[a]ny determination regarding an award
* * * 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).” Section
6330(d) similarly provides that a taxpayer dissatisfied with the outcome of a CDP
hearing “may, within 30 days of a determination under this section, appeal such
determination to the Tax Court (and the Tax Court shall have jurisdiction with
respect to such matter).” Neither statute requires that the Commissioner send a
notice of determination by certified mail to the taxpayer’s last known address or
that he deliver it in any particular way. Indeed, neither statute explicitly requires
that the taxpayer be notified at all, only that a “determination” be made.
In Lunsford v. Commissioner, 117 T.C. 159, 161 (2001), we interpreted sec-
tion 6330(d) to require that a “determination” take the form of a written notice to
the taxpayer. In Weber v. Commissioner, 122 T.C. 258, 261-262 (2004), we held
that “a notice of determination issued pursuant to sections 6320 and/or 6330 is
sufficient if such notice is sent by certified or registered mail to a taxpayer at the
taxpayer’s last known address.” We had no occasion in these cases to decide whe-
ther notice to the taxpayer would be effective if delivered in some other way.
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We recently addressed that question in Bongam v. Commissioner, 146 T.C.
52 (2016). The IRS there mailed a CDP notice of determination to an address that
was not the taxpayer’s last known address. That notice, dated April 30, 2014, was
returned to the IRS as undeliverable. Several months later, on August 4, 2014, the
IRS remailed the notice to the taxpayer’s last known address by regular mail. The
taxpayer received the notice at that address and petitioned this Court within 18
days of the mailing date.
Relying on analogies from our deficiency jurisprudence, we held in Bongam
that the notice of determination, as originally mailed to the taxpayer on April 30,
2014, was invalid because it was not sent to his last known address and was not
actually received by him. That letter therefore did not trigger the statute’s 30-day
jurisdictional filing period. Bongam, 146 T.C. at 57. Instead we held: “[T]he 30-
day window prescribed by section 6330(d)(1) is calculated by reference to the No-
tice of Determination that was successfully sent to petitioner[] * * * on August 4,
2014. Because petitioner actually received that Notice and filed his petition with-
in 30 days, we have jurisdiction to hear this case.” Id. at 59.
The same logic applies here. The notice of determination mailed to peti-
tioner on May 30, 2014, was not sent to his last known address and he did not re-
ceive it. Upon learning this, the Office remailed the notice of determination, as an
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attachment to its October 15, 2015, letter, to petitioner at his correct address. He
received that letter and petitioned this Court on October 26, 2015, within 30 days
of the date on which the notice was mailed to (and received by) him.
We find that the notice of determination, as remailed to petitioner on Octo-
ber 15, 2015, was properly mailed and valid, and that the 30-day period for peti-
tioning this Court did not start to run before that date. Cf. Bongam, 146 T.C. at
57; see also Terrell v. Commissioner, 625 F.3d 254 (5th Cir. 2010) (holding that
90-day window for seeking review of IRS innocent spouse determination did not
begin to run when notice was sent to incorrect address but began to run when
notice was remailed to taxpayer’s correct address); Kasper, 137 T.C. at 42
(“Requiring the Whistleblower Office to provide the whistleblower with notice of
the determination is the logical first step to establish the starting date for the
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period of appeal.”).4 Because petitioner petitioned this Court within 30 days of
October 15, 2015, we have jurisdiction to hear this case under section 7623(b)(4).
To reflect the foregoing,
An order will be issued denying
petitioner’s motion to dismiss for lack of
jurisdiction.
4
In Comparini, 143 T.C. at 274-276, the Office sent the claimants, and they
received, two distinct letters denying their claims, and they petitioned this Court in
response to the second but not the first. Although the Court was unanimous in
finding that we had jurisdiction, there was a spirited debate as to the circumstances
in which a second determination letter would provide the claimants a new 30-day
period within which to petition this Court. Compare id. at 283-286 with id. at
288-295 (Halpern and Lauber, JJ., concurring). Here, respondent did not mail the
May 30, 2014, determination letter to petitioner’s last known address, and peti-
tioner did not receive it; it was thus invalid. Because petitioner received only one
valid determination letter, we have no occasion to address the question that
divided the Court in Comparini.