T.C. Memo. 2019-81
UNITED STATES TAX COURT
STANLEY H. EPSTEIN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 28731-15W, 2965-18W. Filed July 8, 2019.
Mark A. Ozzello, for petitioner.
Terri L. Onorato, Patricia P. Davis, and Hans Famularo, for respondent.
MEMORANDUM OPINION
LAUBER, Judge: These consolidated whistleblower award cases are cur-
rently before the Court on motions for summary judgment filed by the Internal
Revenue Service (IRS or respondent). Both cases arise from petitioner’s 2013 -2-
[*2] claim for an award pursuant to section 7623.1 In 2015 the Whistleblower
Office (Office) issued petitioner a determination letter denying his claim, and he
timely petitioned for review. Epstein v. Commissioner, T.C. Dkt. No. 28731-15W
(filed Nov. 16, 2015). The parties subsequently agreed that the grounds for denial
were improper, and the Office agreed to reopen petitioner’s claim. Upon
reopening the Office referred the claim to the appropriate IRS operating division,
which concluded that petitioner’s claim had no merit and recommended denial.
The Office then issued a second determination letter denying the claim, and
petitioner again petitioned for review. Epstein v. Commissioner, T.C. Dkt. No.
2965-18W (filed Feb. 9, 2018).
Respondent has filed a separate motion for summary judgment in each case.
In docket No. 2965-18W he contends that he is entitled to judgment as a matter of
law because the IRS did not initiate any administrative or judicial action against
any taxpayer and did not collect any proceeds on the basis of the information peti-
tioner provided. See sec. 7623(b)(1). In docket No. 28731-15W respondent con-
tends that the case is moot. We will grant both motions.
1 All statutory references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. We round all monetary amounts to the nearest dollar. -3-
[*3] Background
The following facts are derived from the pleadings, the parties’ motion pa-
pers, and the exhibits attached thereto. Petitioner resided in California when he
filed his timely petitions with this Court.
In April 2013 petitioner submitted to the Office a Form 211, Application for
Award for Original Information, alleging that an identified taxpayer had been sys-
tematically misreporting interest income on certain financial products. The Office
referred the claim to the IRS Large Business and International Division (LB&I),
which informed the Office that it had already reached an agreement with the tax-
payer on this issue before petitioner submitted his claim. On October 15, 2015,
the Office sent petitioner a final determination letter stating that his claim had
been denied because “[t]he issue you identified was already in the IRS audit plan
due to the taxpayer’s disclosure of the issue.”
Petitioner sought review of that determination in docket No. 28731-15W.
The parties subsequently agreed that the financial products that were the subject of
petitioner’s claim were different from the financial products that LB&I had previ-
ously investigated. In April 2016 the parties filed a joint motion to remand the -4-
[*4] case to the Office for further consideration. The Court held that motion in
abeyance and directed the parties to work together to resolve the case.2
The Office agreed to reopen petitioner’s claim and sent his Form 211 to
LB&I for further review. An agent in LB&I evaluated the claim and concluded
that the taxpayer was “correctly reporting the interest income paid” on the finan-
cial products that were the subject of petitioner’s claim. LB&I found no reason to
pursue any action against the taxpayer and again recommended denial. On Janu-
ary 11, 2018, the Office sent petitioner a second determination letter denying his
claim, stating that the IRS had reviewed the information he supplied but that its
review “did not result in the assessment of additional tax, penalties, interest or
other amounts.” In docket No. 2965-18W petitioner timely sought review of that
determination.
We consolidated the two cases, and respondent subsequently filed motions
for summary judgment. In docket No. 2965-18W he contends that he is entitled to
judgment as a matter of law because the IRS did not initiate any administrative or
judicial action against, or recover any proceeds from, any taxpayer. See sec.
2 When the parties filed their remand motion, the Court had not yet addres- sed whether it had authority to remand a whistleblower case to the Office. In 2019 we held for the first time that in appropriate circumstances we have such authority. Whistleblower 769-16W v. Commissioner, 152 T.C. __ (Apr. 11, 2019). -5-
[*5] 7623(b)(1). In docket No. 28731-15W respondent urges that the case is moot.
Petitioner has filed a single response in which he argues that LB&I misapprehend-
ed the tax law and facts relevant to his claim and that the Office abused its discre-
tion in deferring to LB&I’s view. Petitioner does not dispute respondent’s moot-
ness argument with respect to the earlier filed case.
Discussion
A. Summary Judgment Standard
The purpose of summary judgment is to expedite litigation and avoid costly,
time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90
T.C. 678, 681 (1988). The Court may grant summary judgment “upon all or any
part of the legal issues in controversy” when there is no genuine dispute as to any
material fact and a decision may be rendered as a matter of law. Rule 121(a)
and (b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17
F.3d 965 (7th Cir. 1994). In deciding whether to grant summary judgment, we
construe factual materials and inferences drawn from them in the light most favor-
able to the nonmoving party. Sundstrand Corp., 98 T.C. at 520. However, the
nonmoving party “may not rest upon the mere allegations or denials” of his plead-
ings but instead “must set forth specific facts showing that there is a genuine dis-
pute for trial.” Rule 121(d); see Sundstrand Corp., 98 T.C. at 520. Finding no -6-
[*6] material facts to be in genuine dispute, we conclude that these cases may
appropriately be adjudicated summarily.
B. Standard and Scope of Review
We review the Secretary’s determination as to whether a whistleblower is
entitled to an award by applying an abuse-of-discretion standard. Kasper v. Com-
missioner, 150 T.C. 8, 22 (2018). Abuse of discretion exists when a determination
is arbitrary, capricious, or without sound basis in fact or law. Murphy v. Com-
missioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006). In ascer-
taining whether the Secretary abused his discretion, we generally confine our
review to the administrative record. Kasper, 150 T.C. at 20.
C. Analysis
Section 7623(b)(1) provides for nondiscretionary (i.e., mandatory) awards
of at least 15% and not more than 30% of the collected proceeds if all stated re-
quirements are met. Before any award can be paid, section 7623(b)(1) requires
that the IRS first proceed with an “administrative or judicial action” and then
collect proceeds from the target taxpayer. See Cohen v. Commissioner, 139 T.C.
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T.C. Memo. 2019-81
UNITED STATES TAX COURT
STANLEY H. EPSTEIN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 28731-15W, 2965-18W. Filed July 8, 2019.
Mark A. Ozzello, for petitioner.
Terri L. Onorato, Patricia P. Davis, and Hans Famularo, for respondent.
MEMORANDUM OPINION
LAUBER, Judge: These consolidated whistleblower award cases are cur-
rently before the Court on motions for summary judgment filed by the Internal
Revenue Service (IRS or respondent). Both cases arise from petitioner’s 2013 -2-
[*2] claim for an award pursuant to section 7623.1 In 2015 the Whistleblower
Office (Office) issued petitioner a determination letter denying his claim, and he
timely petitioned for review. Epstein v. Commissioner, T.C. Dkt. No. 28731-15W
(filed Nov. 16, 2015). The parties subsequently agreed that the grounds for denial
were improper, and the Office agreed to reopen petitioner’s claim. Upon
reopening the Office referred the claim to the appropriate IRS operating division,
which concluded that petitioner’s claim had no merit and recommended denial.
The Office then issued a second determination letter denying the claim, and
petitioner again petitioned for review. Epstein v. Commissioner, T.C. Dkt. No.
2965-18W (filed Feb. 9, 2018).
Respondent has filed a separate motion for summary judgment in each case.
In docket No. 2965-18W he contends that he is entitled to judgment as a matter of
law because the IRS did not initiate any administrative or judicial action against
any taxpayer and did not collect any proceeds on the basis of the information peti-
tioner provided. See sec. 7623(b)(1). In docket No. 28731-15W respondent con-
tends that the case is moot. We will grant both motions.
1 All statutory references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. We round all monetary amounts to the nearest dollar. -3-
[*3] Background
The following facts are derived from the pleadings, the parties’ motion pa-
pers, and the exhibits attached thereto. Petitioner resided in California when he
filed his timely petitions with this Court.
In April 2013 petitioner submitted to the Office a Form 211, Application for
Award for Original Information, alleging that an identified taxpayer had been sys-
tematically misreporting interest income on certain financial products. The Office
referred the claim to the IRS Large Business and International Division (LB&I),
which informed the Office that it had already reached an agreement with the tax-
payer on this issue before petitioner submitted his claim. On October 15, 2015,
the Office sent petitioner a final determination letter stating that his claim had
been denied because “[t]he issue you identified was already in the IRS audit plan
due to the taxpayer’s disclosure of the issue.”
Petitioner sought review of that determination in docket No. 28731-15W.
The parties subsequently agreed that the financial products that were the subject of
petitioner’s claim were different from the financial products that LB&I had previ-
ously investigated. In April 2016 the parties filed a joint motion to remand the -4-
[*4] case to the Office for further consideration. The Court held that motion in
abeyance and directed the parties to work together to resolve the case.2
The Office agreed to reopen petitioner’s claim and sent his Form 211 to
LB&I for further review. An agent in LB&I evaluated the claim and concluded
that the taxpayer was “correctly reporting the interest income paid” on the finan-
cial products that were the subject of petitioner’s claim. LB&I found no reason to
pursue any action against the taxpayer and again recommended denial. On Janu-
ary 11, 2018, the Office sent petitioner a second determination letter denying his
claim, stating that the IRS had reviewed the information he supplied but that its
review “did not result in the assessment of additional tax, penalties, interest or
other amounts.” In docket No. 2965-18W petitioner timely sought review of that
determination.
We consolidated the two cases, and respondent subsequently filed motions
for summary judgment. In docket No. 2965-18W he contends that he is entitled to
judgment as a matter of law because the IRS did not initiate any administrative or
judicial action against, or recover any proceeds from, any taxpayer. See sec.
2 When the parties filed their remand motion, the Court had not yet addres- sed whether it had authority to remand a whistleblower case to the Office. In 2019 we held for the first time that in appropriate circumstances we have such authority. Whistleblower 769-16W v. Commissioner, 152 T.C. __ (Apr. 11, 2019). -5-
[*5] 7623(b)(1). In docket No. 28731-15W respondent urges that the case is moot.
Petitioner has filed a single response in which he argues that LB&I misapprehend-
ed the tax law and facts relevant to his claim and that the Office abused its discre-
tion in deferring to LB&I’s view. Petitioner does not dispute respondent’s moot-
ness argument with respect to the earlier filed case.
Discussion
A. Summary Judgment Standard
The purpose of summary judgment is to expedite litigation and avoid costly,
time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90
T.C. 678, 681 (1988). The Court may grant summary judgment “upon all or any
part of the legal issues in controversy” when there is no genuine dispute as to any
material fact and a decision may be rendered as a matter of law. Rule 121(a)
and (b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17
F.3d 965 (7th Cir. 1994). In deciding whether to grant summary judgment, we
construe factual materials and inferences drawn from them in the light most favor-
able to the nonmoving party. Sundstrand Corp., 98 T.C. at 520. However, the
nonmoving party “may not rest upon the mere allegations or denials” of his plead-
ings but instead “must set forth specific facts showing that there is a genuine dis-
pute for trial.” Rule 121(d); see Sundstrand Corp., 98 T.C. at 520. Finding no -6-
[*6] material facts to be in genuine dispute, we conclude that these cases may
appropriately be adjudicated summarily.
B. Standard and Scope of Review
We review the Secretary’s determination as to whether a whistleblower is
entitled to an award by applying an abuse-of-discretion standard. Kasper v. Com-
missioner, 150 T.C. 8, 22 (2018). Abuse of discretion exists when a determination
is arbitrary, capricious, or without sound basis in fact or law. Murphy v. Com-
missioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006). In ascer-
taining whether the Secretary abused his discretion, we generally confine our
review to the administrative record. Kasper, 150 T.C. at 20.
C. Analysis
Section 7623(b)(1) provides for nondiscretionary (i.e., mandatory) awards
of at least 15% and not more than 30% of the collected proceeds if all stated re-
quirements are met. Before any award can be paid, section 7623(b)(1) requires
that the IRS first proceed with an “administrative or judicial action” and then
collect proceeds from the target taxpayer. See Cohen v. Commissioner, 139 T.C.
299, 302 (2012), aff’d, 550 F. App’x 10 (D.C. Cir. 2014); Whistleblower 14106-
10W v. Commissioner, 137 T.C. 183, 189 (2011). While we have jurisdiction to
review the IRS’ award determination, section 7623 gives us no authority to direct -7-
[*7] the IRS to commence an administrative or judicial action. See Cooper v.
Commissioner, 136 T.C. 597, 600-601 (2011). “Our jurisdiction under section
7623(b) does not contemplate that we redetermine the tax liability of the
taxpayer.” Id. at 600. If the IRS does not proceed with an administrative or
judicial action after considering the information the whistleblower provided, there
can be no award under section 7623(b). See Cooper, 136 T.C. at 601.
The administrative record shows that upon reopening petitioner’s claim, the
Office forwarded his information to LB&I, the appropriate IRS operating division.
LB&I concluded that the taxpayer was properly reporting interest income with re-
spect to the financial products that were the subject of petitioner’s Form 211. Ac-
cordingly, the IRS commenced no action against, and collected no proceeds from,
the taxpayer as a result of the information petitioner supplied.
Petitioner does not allege any material dispute as to these facts. Instead, he
contends that LB&I erred in its view of the law and the facts related to his claim
and that the Office abused its discretion in accepting LB&I’s recommendation.
But we have no authority to review LB&I’s decision not to commence an admin-
istrative or judicial action. “Petitioner may disagree with respondent’s legal
conclusions for why there was no * * * tax due,” but “whistleblower awards are
preconditioned on the Secretary’s proceeding with an administrative or judicial -8-
[*8] action,” which did not happen here. See id. at 601. Because petitioner has
not met the threshold requirements for a whistleblower award, the Office did not
abuse its discretion in denying his claim. We will therefore grant summary
judgment for respondent in the case at docket No. 2965-18W.
Concluding as we do that petitioner’s claim was properly denied, we find
that petitioner’s case at docket No. 28731-15W is moot. See Conservation Force,
Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (stating that a case becomes
moot when among other things “the court can provide no effective remedy because
a party has already ‘obtained all the relief that [it has] sought’” (quoting Monzillo
v. Biller, 735 F.2d 1456, 1459 (D.C. Cir. 1984))).3 Assuming arguendo that the
Office abused its discretion in issuing the first determination letter, “the likely
remedy would be remand to the Whistleblower Office for reconsideration.”
Whistleblower 769-16W v. Commissioner, 152 T.C __, __ (slip op. at 14) (Apr.
11, 2019). Petitioner already obtained that relief when the Office reopened his
claim and forwarded it to LB&I for further analysis on the merits.
3 Our whistleblower cases are normally appealable to the U.S. Court of Appeals for the D.C. Circuit. See sec. 7482(b)(1) (penultimate sentence); Kasper, 150 T.C. at 11 n.1. -9-
[*9] To reflect the foregoing,
Appropriate orders will be issued,
and decisions will be entered.