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, 

, 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, 

, 520 (1992), aff’d, 

(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., 

. 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., 

. Finding no
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[*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, 

, 22 (2018). Abuse of discretion exists when a determination

is arbitrary, capricious, or without sound basis in fact or law. Murphy v. Com-

missioner, 

, 320 (2005), aff’d, 

(1st Cir. 2006). In ascer-

taining whether the Secretary abused his discretion, we generally confine our

review to the administrative record. Kasper, 

.

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, 

, 302 (2012), aff’d, 550 F. App’x 10 (D.C. Cir. 2014); Whistleblower 14106-

10W v. Commissioner, 

, 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, 

, 600-601 (2011). “Our jurisdiction under section

7623(b) does not contemplate that we redetermine the tax liability of the

taxpayer.” 

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, 

.

      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
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[*8] action,” which did not happen here. See 

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, 

, 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, 

, 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,

n.1.
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[*9] To reflect the foregoing,


                                        Appropriate orders will be issued,

                                 and decisions will be entered.