Jeremy Berenblatt

Opinion

United States Tax Court

T.C. Memo. 2026-77

JEREMY BERENBLATT,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

__________

Docket No. 7208-17W. Filed August 31, 2026.

__________

T. Scott Tufts and Scott J. Watnik, for petitioner.

Elizabeth C. Mourges, Ka Tam, and Alexandra E. Nicholaides, for respondent.

MEMORANDUM OPINION

COPELAND, Judge: Petitioner, Jeremy Berenblatt, seeks review, pursuant to section 7623(b)(4), 1 of the Internal Revenue Service (IRS) Whistleblower Office’s (WBO’s) final determination denying his claim for award. As part of the Government’s multiyear prosecutions against the promoters of abusive tax shelters, Mr. Berenblatt was screened as a potential witness and interviewed once. Mr. Berenblatt was not ultimately selected as a witness and had no further contact with the IRS until he submitted his application for award seven years later, after the Government had collected billions.

1 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C. (I.R.C. or Code), in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.

Served 08/31/26

[*2] Currently pending before the Court are the Commissioner’s Motion for Summary Judgment (Docket Index No. 117) and Mr. Berenblatt’s Motion for Partial Summary Judgment (Docket Index No. 214), respectively dated April 22, 2021, and December 5, 2024.

Background

The following facts are derived from the pleadings, the parties’

Motion papers, the Declarations and Exhibits attached thereto, the Administrative Record filed with the Court, and our previous opinions in this case, Berenblatt v. Commissioner (Berenblatt II), 160 T.C. 534 (2023), and Berenblatt v. Commissioner, T.C. Memo. 2026-75. They are stated solely for the purpose of disposing of the parties’ Motion for Summary Judgment and Motion for Partial Summary Judgment and not as findings of fact.

On July 1, 2015, the WBO received Mr. Berenblatt’s Form 211, Application for Award for Original Information, dated June 25, 2015. An attached memorandum provided the substantive information for his Form 211. Mr. Berenblatt sent the WBO a followup memorandum in support of his Form 211, dated December 8, 2015. We refer to the June 25 memorandum and the December 8 memorandum collectively as the Form 211 memoranda.

I. The Form 211 Memoranda

The Form 211 memoranda set forth the facts alleged in this paragraph and the paragraphs that follow. Mr. Berenblatt worked as a stock trader in the late 1990s, with expertise in foreign currency exchange. He earned a significant amount of income during the year 2000, after which he was approached about investing in a digital foreign exchange option transaction (at times also referred to as short options strategy (SOS)), which was billed as an opportunity for legally minimizing taxes. A digital option is a type of option where the payoff is either a fixed amount or nothing at all, depending on whether the underlying asset passes a stated strike price.

Mr. Berenblatt completed an SOS investor application and funded a trading account. However, he ultimately determined that the probability of the transaction’s yielding a net positive payoff was negligible, such that the transaction lacked a nontax business purpose and was potentially fraudulent. In the words of the June 25 memorandum: “[Mr. Berenblatt] concluded that it would be impossible to ever make money, as the lottery payout [i.e., the nonzero option

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[*3] payoff] would never materialize. . . . The only conceivable benefit from the deal was the extraordinary tax benefit that had nothing to do with any plausible return on the investment.” Mr. Berenblatt did not move forward with the investment.

In late 2007 a special agent (SA) in the IRS’s Criminal Investigation Division (CID) called Mr. Berenblatt to request a meeting. The agent mentioned that the U.S. Government would soon convene a grand jury investigation into some of the digital foreign exchange option promoters. According to Mr. Berenblatt, in or around November 2007 2 Mr. Berenblatt met with Shawn Chandler, another CID SA, at SA Chandler’s New York office. A third CID SA, Christine Mazzella, and IRS Revenue Agent (RA) Arthur Mason also participated in the meeting. During the meeting, Mr. Berenblatt related his analysis of the digital foreign exchange option transaction to the agents. He explained that the probability distribution for payoffs on the digital options was skewed by the fact that the intermediary bank “controlled the trade and its pricing.”

Mr. Berenblatt claims that he was the first person to provide the IRS with a successful litigation tactic for proving the fraudulence of the digital option, the short option, and other related abusive tax shelter transactions. He claims that before his interview the IRS’s primary litigating position was that those transactions fell afoul of the “step transaction” doctrine—an argument that had failed in court. According to Mr. Berenblatt, after his interview the IRS began winning cases relating to the digital option, the SOS, and similar tax shelters by using the reasoning he had provided to the IRS first.

Mr. Berenblatt seeks an award related to the U.S. Government’s recovery of at least $1.4 billion in restitution, forfeiture, and settlement proceeds and at least $5.9 billion in unpaid taxes stemming from digital options and similar shelters.

II. WBO Review

In July 2015 the WBO received Mr. Berenblatt’s whistleblower award application. Following standard practice, Mr. Berenblatt’s application was first reviewed by a classifier. The classifier, considering only Mr. Berenblatt’s submission, determined that his claim potentially

2 IRS records date Mr. Berenblatt’s interview to September 24, 2007.

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[*4] rated an H (high touch) designation. 3 The classifier began by noting that “[t]he claims at issue have already been resolved resulting in substantial tax collections. The WB claim is that he was the first individual to provide the information in 2007.” The classifier then detailed in etrak (the IRS’s Whistleblower Management Information Tracking System) the following justifications for flagging Mr. Berenblatt’s case as an H claim, all of which derive from a review of the face of the Form 211 memoranda:

1) The date the information was provided to the IRS and the date the 211 was submitted is longer than 6 months

2) The allegations concern tax shelters

3) The information was originally provided to an agent in Criminal Investigation and resulted in successful prosecution and conviction

In September 2015 the WBO assigned Senior Tax Analyst (STA)

Laura Meis to review Mr. Berenblatt’s whistleblower award application as an H case. After reviewing the Form 211 memoranda, STA Meis contacted SA Chandler, one of the CID SAs who had interviewed Mr. Berenblatt in September 2007. STA Meis corresponded by email and phone with SA Chandler, who related that (1) “[Mr. Berenblatt’s] claim as being the first person to provide pertinent and relevant information is not accurate”; (2) Mr. Berenblatt “had not provided any documents for the investigation and . . . he was not called to testify [in any related trials]”; and (3) the digital foreign exchange option investigation had been ongoing for two years before Mr. Berenblatt’s interview.

SA Chandler soon thereafter submitted to the WBO a Form 11369, Confidential Evaluation Report on Claim for Award. SA Chandler checked the “No” box next to the following pertinent questions in item 11:

A. Did the Service use the information the whistleblower provided to develop specific document requests or other inquiries to the [allegedly noncompliant] taxpayer?

3 In the context of this case, a “high touch” designation apparently means that

the case warrants assignment to a senior WBO employee and potential coordination with other IRS functions.

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[*5] B. Did the Service use the information provided by the whistleblower to validate the completeness and accuracy of the taxpayer’s response to information requests?

C. Did the whistleblower provide additional information that would not have been obtained through general audit or investigative techniques?

....

F. Did the whistleblower assist in obtaining the cooperation of other individuals that provided information relevant to the taxpayer’s liability or assets that would not have been expected to be identified through other sources of information?

G. Did the whistleblower provide technical or legal analysis of the taxpayer’s records or transactions that would not otherwise have been done by the Service?

H. Did the whistleblower identify connections between transactions, or parties to transactions, which enabled the Service to understand tax implications that might not otherwise have been revealed?

I. Did the whistleblower provide continuing assistance during the audit or investigation?

SA Chandler also included the following narrative with that Form 11369:

The investigation of the [target] taxpayers was well under way by the time the Whistleblower met with, and provided information to, Internal Revenue Service—Criminal Investigation in or around November 2007. (See attached articles: one regarding the law firm of [Taxpayer F],[4] former employer of . . . [Taxpayer P] and [Taxpayer U], ordered to pay a $76 million fine to the IRS in March 2007 and the other article dated May 18, 2006, regarding

4 Identifying information about the subjects of Mr. Berenblatt’s whistleblower

claims is being redacted in accordance with Rule 345(b) and this Court’s protective order of August 7, 2017. The pseudonyms for the target taxpayers are taken from the reference list of redacted information submitted by Mr. Berenblatt.

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[*6] [Taxpayer H’s] involvement relative to the tax shelter transactions discussed by the Whistleblower.) The whistleblower was one of hundreds of individuals identified as having had contact with the taxpayer(s) relative to the tax shelter transactions at issue in the investigation. The whistleblower did not provide any new information relative to the investigation. The whistleblower was not considered a viable potential witness in the investigation and did not testify during the two criminal trials in this matter. In addition, over 100 individuals had been interviewed in the investigation at the point in time the Whistleblower met with Internal Revenue Service—Criminal Investigation in or around November 2007 and a vast number of financial and tax related subpoenaed records had been analyzed as well.

As indicated in the narrative, SA Chandler attached to Form 11369 several print articles from major news sources. These articles reported the following pertinent information: (1) a law firm identified by Mr. Berenblatt avoided prosecution in March 2007 by admitting that it developed and marketed tax shelters and paying a $76 million penalty to the IRS and (2) a bank identified by Mr. Berenblatt was the subject of a federal investigation into digital options tax shelters as early as May 2006 because it had “engineered the losses through trades in options that were designed to lose money.”

Sometime after her communication with SA Chandler, STA Meis prepared a memorandum for the WBO recommending a preliminary full denial of Mr. Berenblatt’s award application. In support of this recommendation, STA Meis exclusively cited the claims, information, and news articles relayed to her by SA Chandler. The WBO sent a preliminary denial letter to Mr. Berenblatt dated January 4, 2017. STA Meis then prepared a memorandum recommending a final full denial of Mr. Berenblatt’s application. This memorandum provided substantially the same supporting information as STA Meis’s earlier memorandum. The WBO adopted STA Meis’s recommendation and sent Mr. Berenblatt a final denial letter, dated March 2, 2017, explaining that “the IRS identified the issue(s) prior to receipt of your information and your information did not substantially contribute to the actions taken by the IRS.”

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[*7] Mr. Berenblatt timely submitted his Petition to this Court, invoking our jurisdiction under section 7623(b)(4) to consider appeals of whistleblower award determinations by the IRS.

Discussion

I. Jurisdiction

The Tax Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; McCrory v. Commissioner, 156 T.C. 90, 93 (2021). We had previously assured ourselves of our jurisdiction in this case, see Berenblatt II, 160 T.C. at 544–45, and our conclusion remains undisturbed by the U.S. Court of Appeals for the D.C. Circuit’s holding in Kennedy v. Commissioner, 142 F.4th 769 (2025), aff’g in part T.C. Memo. 2021-3. Absent stipulation to the contrary, appeal of this case would lie to the D.C. Circuit under section 7482(b), and we follow its precedent accordingly. See also Berenblatt II, 160 T.C. at 542 n.4; Kasper v. Commissioner, 150 T.C. 8, 11 n.1 (2018).

II. Standard of Review

The purpose of summary judgment is to expedite litigation and avoid costly, unnecessary, and time-consuming trials. See FPL Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74 (2001). As a general rule, we may grant summary judgment where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Rule 121(a)(2); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). But a slightly different standard applies when we review agency action—here, a whistleblower award determination—under the Administrative Procedure Act. Kasper, 150 T.C. at 14–15. In such cases we generally “confine ourselves to the administrative record to decide whether there has been an abuse of discretion.” See Van Bemmelen v. Commissioner, 155 T.C. 64, 78 (2020).

Our Rules recognize this distinction, clarifying that, in cases where judicial review is based solely on the administrative record, Rule 121(a)(2) does not apply. Instead, the parties must provide “statement[s] of facts with references to the administrative record.” Rule 121(j). Likewise, “[i]n reviewing a determination of the WBO, we employ the standard of review of section 706(2)(A) of the Administrative Procedure Act (APA), which tells a reviewing court to reverse agency action that it finds ‘arbitrary, capricious, an abuse of discretion, or

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[*8] otherwise not in accordance with law.’” Van Bemmelen, 155 T.C. at 72 (quoting Kasper, 150 T.C. at 21). Because summary judgment serves as a mechanism for deciding, as a matter of law, whether the WBO’s determinations are supported by the administrative record, we follow the same standard in reviewing summary judgment motions.

Further, in conducting this analysis, we do not substitute our judgment for that of the agency. Rather, we confine ourselves to ensuring that the WBO’s determination was “within the bounds of reasoned decisionmaking.” Id. (quoting Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019)). With respect to factual matters, we accept the WBO’s determinations so long as they are not clearly erroneous. See Kasper, 150 T.C. at 23 (citing Fargo v. Commissioner, 447 F.3d 706, 709 (9th Cir. 2006), aff’g T.C. Memo. 2004-13). Further, as the D.C. Circuit explained in Trongone v. Commissioner, 181 F.4th 85, 90 (D.C. Cir. 2026), in whistleblower cases

we must ensure that the agency’s decision is “reasonable and reasonably explained.” FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). An agency’s decision fails that test if it “runs counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

III. Statutory and Regulatory Background

Section 7623(b) authorizes the payment of mandatory awards “[i]f the Secretary proceeds with any administrative or judicial action . . . based on information brought to the Secretary’s attention” by a whistleblower. 5 In 2014 the Treasury Department issued regulations interpreting section 7623(b). T.D. 9687, 2014-36 I.R.B. 486. These regulations define key terms used in the statute and supply examples showing how these definitions apply. See Treas. Reg. § 301.7623-2. The regulation provides that “the IRS proceeds based on information provided by a whistleblower when the information provided substantially contributes to an action against a person identified by the whistleblower.” Id. para. (b)(1). The regulation also provides examples of when the IRS “proceeds based on” a whistleblower’s information: “when the IRS initiates a new action, expands the scope of an ongoing action, or continues to pursue an ongoing action, that the IRS would not

5 Although the use of the colloquial term “whistleblower” is not controlling, we

note that an individual who is sought out by the government, and not one who seeks out the government of his own volition, does not seem to be “blowing the whistle.”

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[*9] have initiated, expanded the scope of, or continued to pursue, but for the information provided.” Id. Conversely, the IRS does not “proceed based on” the whistleblower’s information when it merely “analyzes the information provided or investigates a matter raised by the information provided.” Id. The D.C. Circuit upheld the validity of Treasury Regulation § 301.7623-2 in the wake of Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). Lissack v. Commissioner, 125 F.4th 245, 249 (2025), aff’g 157 T.C. 63 (2021). Furthermore, the D.C. Circuit has made clear that “the question whether the IRS ultimately collected proceeds based on [a whistleblower’s] application is a merits question.” Trongone v. Commissioner, 181 F.4th at 90.

IV. Analysis

Mr. Berenblatt was interviewed on September 24, 2007, by SA Chandler, SA Mazzella, and RA Mason. Mr. Berenblatt made clear that he felt compelled to appear at the interview because “[the request for a] voluntary appearance was quite involuntary.” He likewise made clear that the interview was “a very hostile meeting.” At the interview, Mr. Berenblatt began by explaining his professional background as a finance professional, and the circumstances that led to his contacts with Taxpayer F. He related how Taxpayer F described the SOS transactions as sophisticated tax minimization trade strategies, and how Taxpayers P and U pressured him to participate in such a transaction while skirting his more technical questions. Mr. Berenblatt explained how, although he had intended to participate in an SOS transaction, his background as a trader allowed him to discern the transaction’s lack of economic substance. Mr. Berenblatt claims that this point stunned the IRS agents, especially considered in the light of the fact that he was the only potential SOS investor who did not complete the transaction.

The IRS’s recollection of the interview, as documented in SA Chandler’s Form 11369 narrative, is vastly different. SA Chandler began by noting that the tax shelter promoter prosecutions, of which Mr. Berenblatt’s interview was but one part, were well underway by the time of Mr. Berenblatt’s interview. He further noted that the information Mr. Berenblatt provided was not new relative to the investigation, and that over 100 individuals had already been interviewed. He emphasized news articles indicating that, before interviewing Mr. Berenblatt, the IRS had already entered into a nonprosecution agreement with a law firm involved in the SOS and related shelters, and that a bank involved in similar shelters was being investigated by CID because it “engineered the losses through trades in options that were designed to lose money,”

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[*10] a basis identical to the legal theory Mr. Berenblatt claims to have been the first to disclose. Finally, SA Chandler’s straight-ticket negative responses to the plethora of questions on Form 11369 regarding the whistleblower’s contribution to the development of facts confirmed that the Service did not use Mr. Berenblatt’s information to any appreciable degree.

Inaction can also be informative. Mr. Berenblatt did not provide any documents, during the interview or after, that the IRS subsequently used as the basis of any actions. Mr. Berenblatt was not ultimately called as a witness in either of the trials for which he was considered. And, most tellingly, Mr. Berenblatt was never recalled by the IRS for further interviews. The Government’s negative action is inconsistent with Mr. Berenblatt’s claim of providing groundbreaking information. Moreover, Mr. Berenblatt had no contact with the IRS from his interview in late 2007 until his submission of Form 211 in 2015.

Contrary to Mr. Berenblatt’s assertions, the record depicts a single interview, which he was reluctant to attend, that was unremarkable but for the idiosyncrasy that the interviewee began to take part in, but did not complete his participation in, an SOS transaction. Although Mr. Berenblatt argues that he paved the “yellow brick road” for the IRS, he conveniently ignores that the IRS had already found the proverbial wizard. The Government did not open any new investigations on account of Mr. Berenblatt’s information. The Government did not expand the scope of any ongoing investigations on account of Mr. Berenblatt’s information. The Government did not continue pursuing an investigation it would have terminated but for Mr. Berenblatt’s information. In sum, Mr. Berenblatt’s interview did not alter the course of the SOS (and related tax shelter) promoter prosecutions in any meaningful manner. Accordingly, he did not “substantially contribute” to those actions in a way that would merit a mandatory award pursuant to section 7623(b).

V. Mr. Berenblatt’s Counterarguments

In response, Mr. Berenblatt levies a litany of objections: that the WBO read out of section 7623 its “action requirement”; that the temporal proximity between his interview and the IRS’s subsequent successes prove his contribution; that SA Chandler’s Form 11369 was deficient for a variety of reasons; that the WBO’s initial classification of his claim as high touch ought to control; and that Trongone v.

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[*11] Commissioner, 181 F.4th 85, controls and mandates partial summary judgment in his favor. 6 They are unavailing.

A. The “Action Requirement” of Section 7623

Mr. Berenblatt goes to great lengths to assert that the WBO analyzed his claim without considering the “action requirement” of section 7623. This argument is misplaced and rooted in an acontextual reading of our caselaw. In Berenblatt II, 160 T.C. at 543, we noted two prerequisites to a mandatory award under section 7623(b): (1) the IRS must proceed based on a whistleblower’s information (the “action requirement”), and (2) the IRS must collect proceeds as a result thereof (the “collection requirement”). As previously noted, the IRS proceeds based on a whistleblower’s information (i.e. satisfies the action requirement) when said information substantially contributes to the IRS’s actions. Treas. Reg. § 301.7623-2(b)(1). In other words, Mr. Berenblatt’s invocation of the section 7623 “action requirement” merely restates his claim of substantial contribution. Here, the action in question is the prosecution of the SOS tax shelter promoters, in the aggregate, and the core issue is not whether the IRS acted (it certainly did), but whether Mr. Berenblatt’s part in the Government’s prosecution, a single interview, substantially contributed to the collection of over $7 billion. There is no genuine dispute as to these facts such that on the basis of the record, the WBO reasonably found that he did not substantially contribute. Accordingly, it properly applied section 7623, including its action requirement.

In the alternative, Mr. Berenblatt argues that his information may have substantially contributed to the Government’s prosecution even if it was not new to the IRS. Mr. Berenblatt layers speculation over theory to hypothesize that his information corroborated what the IRS already knew, in turn giving the Government greater confidence to proceed using that information. This theory also fails: The fact pattern is analogous to Example 3 of Treasury Regulation § 301.7623-2(b)(2). The Example contemplates a whistleblower whose information only “confirm[ed] the correctness of the IRS’s adjustments,” concluding that such a whistleblower did not substantially contribute to the IRS’s action. For the same reason, Mr. Berenblatt’s theory, even if correct, would not entitle him to a mandatory award under section 7623(b).

6 Mr. Berenblatt first addressed Trongone in a Notice of Supplemental

Authority (Docket Index No. 231).

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[*12] B. But-For Causation

Mr. Berenblatt makes much of the temporal proximity between his interview and subsequent results in the Government’s prosecution. He claims that the Government’s subsequent successes—including the “flipping” of Taxpayer N-K—stem from the information he provided. He explains that Taxpayer N-K was the first to plead guilty, the first domino whose plea resulted in a cascade of numerous other guilty pleas, which, as best we can understand his argument, in turn led to the collection of substantial proceeds from restitution, nonprosecution agreements, and deferred prosecution agreements. He is essentially arguing that but for his interview, the Government would not have collected any proceeds. Nothing in the record supports this theory. Taxpayer N-K is not mentioned in Mr. Berenblatt’s Form 211 memoranda. Moreover, even if Mr. Berenblatt singled out certain taxpayers, an award requires more: His information must substantially contribute to the recovery of taxes. The D.C. Circuit has rejected as insufficient the but-for causation Mr. Berenblatt claimed. Lissack v. Commissioner, 125 F.4th at 258 (“[Because a whistleblower award is pegged to] the degree of substantiality of the whistleblower’s assistance, the statute plainly means that all [whistleblower] awards depend on the whistleblower having contributed in some substantial degree to the Service’s ability to proceed. But-for cause is not enough.”).

C. SA Chandler’s Form 11369

Mr. Berenblatt next raises a host of issues with the Form 11369.

First, he argues that Form 11369 should have been completed by SA Mazzella and not SA Chandler because she was the lead agent on the case. However, he cites no authority for this proposition. Even if SA Chandler was not the lead agent on the case, he still had significant involvement in the case and personally interviewed Mr. Berenblatt. And he was certainly qualified to appraise the utility of Mr. Berenblatt’s information; having interviewed over 100 other potential witnesses, SA Chandler had more than enough experience to ascertain whether Mr. Berenblatt’s information was new to the IRS or whether it would have been of use in the ongoing investigations. Nor is the WBO obligated to debrief every individual who had spoken with Mr. Berenblatt. In sum, STA Meis did not abuse her discretion by obtaining a Form 11369 from only SA Chandler.

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[*13] Mr. Berenblatt vehemently discounts SA Chandler’s Form 11369 narrative as pure ipse dixit. Where SA Chandler’s narrative diverges from Mr. Berenblatt’s Form 211, Mr. Berenblatt dismisses it as counterfactual. Although Mr. Berenblatt cries bad faith, the mere invocation thereof, without more, is insufficient to justify looking past the administrative record at the facts underlying SA Chandler’s statements. See Berenblatt II, 160 T.C. at 546. In the absence of a concrete showing of bad faith, we decline Mr. Berenblatt’s invitation to set aside SA Chandler’s narrative.

Mr. Berenblatt further critiques Form 11369, arguing that it is so incomplete as to run afoul of Treasury Regulation § 301.7623-3 and additionally does not satisfy the Internal Revenue Manual (IRM). This attack also fails. In the first instance, the regulation in question explains the necessary components of the administrative record for whistleblower claims. It is not a directive to the operating divisions on how to fill out the form. Moreover, SA Chandler’s Form 11369 adheres to applicable regulatory requirements. As to Mr. Berenblatt’s IRM argument, it is settled law that the IRM “does not have the force of law and does not confer rights on taxpayers.” Fargo v. Commissioner, 447 F.3d at 713. Mr. Berenblatt therefore may not rely upon the IRM to demonstrate the WBO’s error.

Mr. Berenblatt also targets the sufficiency of SA Chandler’s Form 11369 on the basis that it names only Taxpayers P, T, H, and F. On the basis of only his Form 211 memoranda, Mr. Berenblatt asserts that SA Chandler’s Form 11369 should have named Taxpayers P, T, H-P, F-M, H, N, and individual taxpayers. However, on the actual Form 211 he submitted, Mr. Berenblatt names only the following taxpayers in box 1: Taxpayer P, Taxpayer F & its partners, Taxpayer H, Taxpayer U, and investors in schemes marketed by the foregoing taxpayers. In the aftermath of the SOS prosecutions, Taxpayer U became a part of Taxpayer H. Taxpayers H-P, F-M, and N are notably absent from box 1 of Mr. Berenblatt’s Form 211. Thus, any omission on the Form 11369 simply mirrors Mr. Berenblatt’s submissions. And, at worst, this constitutes harmless error; the WBO nonetheless analyzed the proper claims. Again there is no genuine dispute as to a material fact.

D. The WBO’s Initial Classification

Mr. Berenblatt’s next strike faults STA Meis for not according greater weight to the classifier’s high touch rating. He claims that, since the classifier graded his claim as high touch, the IRS had conclusively

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[*14] determined that his information “resulted in successful prosecution and conviction.” Mr. Berenblatt misunderstands the role of the classifier within the whistleblower regime’s overarching structure. A classifier is an employee of an operating division who functions as a gatekeeper. See IRM 25.2.1.3.1 (Mar. 10, 2023) (“Classification’s role is only to determine if the information on the Form 211 warrants further review. It is not classification’s responsibility to determine whether a whistleblower is entitled to an award.”). Indeed, if we agreed with Mr. Berenblatt, there would be no need at all for the WBO; classifiers alone would be sufficient. Here, the classifier determined, solely on the basis of Mr. Berenblatt’s Form 211 submission, that Mr. Berenblatt’s claim warranted further review. However, that a claim is not prima facie unviable is not the same as saying that the claim is meritorious. Ultimately, the H classification allowed STA Meis to research Mr. Berenblatt’s claim in greater detail. With a more complete understanding of the facts, STA Meis determined that Mr. Berenblatt’s information did not substantially contribute to any administrative or judicial action. That her conclusion disagreed with the classifier’s initial determination to investigate further does not mean that STA Meis’s decision is arbitrary or capricious; rather, as already explained above, STA Meis reasonably concluded that the IRS did not proceed based on Mr. Berenblatt’s information. Nor is it a fatal error that the administrative record does not contain the classification checklist. A passing reference to the classification checklist does not necessarily make it part of the record. See Berenblatt II, 160 T.C. at 552 n.8.

E. Trongone

In a final bid, Mr. Berenblatt appeals to the D.C. Circuit’s recent decision in Trongone v. Commissioner, 181 F.4th 85. However, neither the facts nor the legal analysis therein is apposite here. Mary Trongone’s WBO submission alleged that the targets violated the Code from 2004 to 2012. She later argued that the violations continued from 2013 to 2017. The WBO denied her application for award in its entirety. The D.C. Circuit partially disagreed, finding that the record was thorough and well reasoned as to the 2004–12 period, but inadequate as to the 2013–17 period. Accordingly, it reversed this Court with instructions to remand to the WBO. The D.C. Circuit’s decision is a straightforward application of the Chenery rule: An agency’s decision can be judged only on the rationale provided. If we are to draw parallels between this case and Trongone, the instant facts are akin to the 2004– 12 period rather than the 2013–17 period. The WBO compiled hundreds of pages of documentation describing IRS–CID’s single interview with

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[*15] Mr. Berenblatt, the course of the digital option shelter promoter prosecutions, and Mr. Berenblatt’s minimal role therein. In sum, the administrative record is thorough and more than adequately supports the WBO’s decision to deny Mr. Berenblatt’s application for award.

VI. Conclusion

After reviewing the administrative record, we do not find any genuine disputes as to any material fact, and we conclude that the WBO’s determination denying Mr. Berenblatt’s claim for award was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Van Bemmelen, 155 T.C. at 72 (quoting Kasper, 150 T.C. at 21). Accordingly, we will grant the Commissioner’s Motion for Summary Judgment and deny Mr. Berenblatt’s Motion for Partial Summary Judgment.

To reflect the foregoing,

An appropriate order and decision will be entered.