Thomas M. Comparini & Vicki Comparini v. Commissioner , 143 T.C. 274 ( 2014 )

THOMAS M. COMPARINI AND VICKI COMPARINI, PETITIONERS v.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Docket No. 6674–13W. Filed October 2, 2014.
Ps filed with R’s Whistleblower Office (W) a claim for a
whistleblower award under I.R.C. sec. 7623(b). In 2012 W
mailed four essentially identical letters to Ps stating that Ps
are not eligible for an award and inviting Ps to contact W
with any questions. Ps later submitted additional information
to W in support of Ps’ claim. In 2013 W sent a letter (2013
letter) to Ps stating that W ‘‘determined your claim still does
not meet our criteria for an award’’, ‘‘[o]ur determination
remains the same’’, and ‘‘we are closing this claim.’’ Ps peti-
tioned this Court under I.R.C. sec. 7623(b)(4) within 30 days
after receiving the 2013 letter. R moved to dismiss this case
for lack of jurisdiction. Held: The 2013 letter constitutes a
determination for purposes of I.R.C. sec. 7623(b)(4). R’s
motion to dismiss for lack of jurisdiction will be denied.
Thomas M. and Vicki Comparini, pro sese.
Rachel G. Borden, for respondent.
274
(274) COMPARINI v. COMMISSIONER 275
OPINION
COLVIN, Judge: This case is before the Court on respond-
ent’s motion to dismiss for lack of jurisdiction. For reasons
discussed below we will deny respondent’s motion.
Petitioners commenced this whistleblower proceeding
pursuant to section 7623(b)(4). 1 Respondent then moved to
dismiss for lack of jurisdiction, and petitioners filed an objec-
tion to respondent’s motion. Neither party requested a
hearing, and we conclude that none is necessary to decide
respondent’s motion.
For purposes of deciding respondent’s motion, we consider
the following undisputed information contained in the
pleadings and documents relating to respondent’s motion to
dismiss.
Background
Petitioners resided in Illinois when they filed the petition.
On February 6, 2012, petitioners filed with the Internal
Revenue Service (IRS) a Form 211, Application for Award for
Original Information. The form was forwarded to the IRS
Whistleblower Office in Ogden, Utah.
The Whistleblower Office processed petitioners’ application
as four separate claims designated with numbers ending in
48, 49, 50, and 51. The Whistleblower Officer treated two of
the claims (48 and 49) as if they had been made only by peti-
tioner husband and the two other claims (50 and 51) as if
they had been made only by petitioner wife. The record does
not indicate why the Whistleblower Office treated petitioners’
application as four separate claims. 2 The Whistleblower
Office denied petitioners’ claims in four separate letters. The
two letters sent to petitioner husband dated October 30,
2012, stated:
We have considered your application for an award dated 01/11/12. Under
Internal Revenue Code Section 7623, an award may be paid only if the
1 Unless otherwise indicated, section references are to the Internal Rev-
enue Code in effect at all relevant times, and Rule references are to the
Tax Court Rules of Practice and Procedure. We round monetary amounts
to the nearest dollar.
2 Neither party contends, nor do we believe, that the fact that the Whis-
tleblower Office used four letters in 2012 instead of one to deny petitioners’
application has any bearing on the issues in dispute in this case.
276 143 UNITED STATES TAX COURT REPORTS (274)
information provided results in the collection of additional tax, penalties,
interest or other proceeds. In this case, the information you provided did
not result in the collection of any proceeds. Therefore, you are not
eligible for an award.
Although the information you submitted did not qualify for an award,
thank you for your interest in the administration of the internal revenue
laws.
If you have any further questions in regards to this letter, please feel
free to contact the Informant Claims Examination Team at * * *.
Sincerely,
/s
Cindy Wilde
Supervisor—Whistleblower Office, Ogden
The Whistleblower Office denied petitioner wife’s claims in
two substantially identical letters dated November 15, 2012.
Petitioners received the four letters (2012 letters) in
November 2012. None of these letters refers to a determina-
tion or states that a determination had been made.
Around January 18, 2013, petitioners sent a letter to the
Whistleblower Office in which they stated that they were
submitting additional information and making additional
claims for the years covered by the 2012 letters. The Whistle-
blower Office replied by letter dated February 12, 2013 (Feb-
ruary 2013 letter). The February 2013 letter referred only to
claim No. 48 and stated:
We considered the additional information you provided and determined
your claim still does not meet our criteria for an award. Our determina-
tion remains the same despite the information contained in your latest
letter.
Please keep in mind the confidentiality of the informants’ claims process
and understand that we cannot disclose the facts surrounding an exam-
ination, i.e. taxes collected and audit examination.
Although we are closing this claim, we appreciate your interest in the
compliance with the tax laws and in the Informants’ Claims for Award
Program.
Sincerely,
/s
Cindy Wilde
Supervisor—Whistleblower Office, Ogden
Petitioners filed a petition with this Court on March 19,
2013, under section 7623(b)(4). Petitioners mailed the peti-
tion to the Court in an envelope postmarked March 14, 2013.
(274) COMPARINI v. COMMISSIONER 277
Discussion
The issue for decision is whether we have jurisdiction as
a result of petitioners’ filing a petition within 30 days after
respondent mailed the 2013 letter.
I. Introduction
The Tax Court may exercise jurisdiction only to the extent
expressly provided by Congress. See sec. 7442; Breman v.
Commissioner, 66 T.C. 61, 66 (1976); see, e.g., Rules 13,
340(b). Section 7623(b)(4) provides that this Court has juris-
diction with respect to matters addressed in any determina-
tion made in response to a whistleblower claim under section
7623(b). More specifically, section 7623(b)(4) provides that
‘‘[a]ny determination regarding an award under paragraph
(1), (2), or (3)[3] 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).’’ Thus, this Court
has jurisdiction under section 7623(b)(4) when (1) the IRS
makes any determination regarding an award under section
7623(b)(1), (2), or (3); and (2) a petition invoking our jurisdic-
tion over that matter is timely filed. See Kasper v. Commis-
sioner, 137 T.C. 37, 41 (2011).
To decide whether we have jurisdiction, first we consider
whether the 2013 letter constitutes a determination under
section 7623(b)(4). Second, if it constitutes a determination,
we decide what effect, if any, the 2012 letters had on peti-
tioners’ opportunity to invoke our jurisdiction under section
7623(b)(4) upon receipt of the 2013 letter.
II. Whether the 2013 Letter Is a Determination Under Section
7623(b)(4)
We first decide whether the 2013 letter is a determination
for purposes of section 7623(b)(4). Petitioners filed the peti-
3 Para. (1) generally requires that the IRS award an individual anywhere
from 15% to 30% of the proceeds the IRS collects as a result of pursuing
an administrative or judicial action based on information furnished by an
individual. Para. (2) generally provides that if proceeding with the action
was primarily based on certain information other than that furnished by
the individual, the award should be no more than 10% of the collected pro-
ceeds. Para. (3) provides that the IRS may reduce or deny an award other-
wise payable under para. (1) or (2) if the individual planned or initiated
the conduct he or she reported.
278 143 UNITED STATES TAX COURT REPORTS (274)
tion within 30 days after the Whistleblower Office sent the
2013 letter. 4 That letter stated in pertinent part that ‘‘[w]e
considered the additional information you provided and
determined your claim still does not meet our criteria for an
award’’, ‘‘our determination remains the same’’, and ‘‘we are
closing this claim.’’ 5
The 2013 letter was the only letter the Whistleblower
Office sent to petitioners stating that a determination had
been made on their claim. By referring to the determination
and stating that the claim was being closed, the letter made
clear that the administrative process had concluded. See
Cooper v. Commissioner, 135 T.C. 70, 72–76 (2010) (holding
that a letter rejecting whistleblower claims was a determina-
tion for purposes of section 7623(b)(4) where the letter
included the clause ‘‘ ‘an award determination * * * [could
not] be made’ ’’); see also SECC Corp. v. Commissioner, 142
T.C. 225, 229 (2014) (holding that a letter not identified as
a determination but stating that ‘‘[t]he employment tax
liability as determined by Appeals will be assessed and you
will receive a Notice and Demand for payment of the tax,
penalty, and interest owed’’ was a determination for purposes
of section 7436(a)).
A letter rejecting a whistleblower claim can be a deter-
mination under section 7623(b)(4) even if it is not formatted
as a determination. See Whistleblower 11332–13W v.
Commissioner, 142 T.C. 396, 398, 404 (2014); Cooper v.
Commissioner, 135 T.C. 70. We have reached a similar
holding in other contexts. See SECC Corp. v. Commissioner,
142 T.C. at 231; Corbalis v. Commissioner, 142 T.C. 46, 57–
58 (2014) (holding that letters stating they were not final
determinations with respect to interest abatement were final
determinations for purposes of section 6404(h)); Craig v.
4 Respondent does not challenge the timeliness of the petition as to the
2013 letter.
5 Our holding is based on the text of the 2013 letter. Petitioners contend
that they provided 300 additional documents supporting and expanding
their claims. In holding that we have jurisdiction we have not considered
the substance or significance of additional information petitioners sub-
mitted after they received the 2012 letters. We discuss infra pp. 283–284
an alternative ground for jurisdiction favored by Judge Halpern and Judge
Lauber in their joint concurring opinion and based on petitioners’ disputed
claims about the significance of these additional documents.
(274) COMPARINI v. COMMISSIONER 279
Commissioner, 119 T.C. 252, 259 (2002) (holding that a form
decision letter issued after a CDP hearing erroneously
labeled as an ‘‘equivalent hearing’’ was a determination
conferring jurisdiction under section 6330(d)(1)); Lunsford v.
Commissioner, 117 T.C. 159, 164 (2001) (holding that a writ-
ten notice to proceed with a collection action constituted a
determination under section 6330).
The 2013 letter contained a statement on the merits of
petitioners’ whistleblower claim, referred for the first time in
a letter to claimants to a ‘‘determination’’ made on that
claim, and did not indicate that further administrative proce-
dures were available to petitioners. 6 We conclude that it con-
stitutes a determination for purposes of section 7623(b)(4). 7
III. The Effect, If Any, of the 2012 Letters on Our Jurisdiction
Over the 2013 Letter
We next consider respondent’s contention that we lack
jurisdiction over the petition filed in response to the 2013
letter because it was filed untimely as to the 2012 letters.
A. Respondent’s Argument
Respondent’s contention that the petition was untimely is
based on opinions of this Court in Friedland v. Commis-
sioner, T.C. Memo. 2011–90 (Friedland I), and Friedland v.
Commissioner, T.C. Memo. 2011–217 (Friedland II) (collec-
tively, Friedland cases). In the Friedland cases, the Whistle-
blower Office sent to the claimant a letter in response to
which the claimant did not file a petition, and the Whistle-
blower Office later sent another letter in response to which
the claimant filed a petition. We held that we lacked jurisdic-
tion in both of those cases. We discuss infra part III.B. the
texts of the 2012 letters in this case and the letters sent in
the Friedland cases. We conclude infra part III.C. that,
6 In contrast, for example, 30-day letters sent by the Examination Divi-
sion typically state a proposed result and invite the taxpayer to seek re-
view by the IRS Office of Appeals.
7 It is well established that no particular words are required for our ju-
risdiction under sec. 7623(b)(4). Cooper v. Commissioner, 135 T.C. 70, 75
(2010). In describing the text of the 2013 letter in the accompanying text,
we do not mean to imply that any of the particular words in the 2013 let-
ter must be present in letters sent by the Whistleblower Office in other
cases in order for this Court to have jurisdiction.
280 143 UNITED STATES TAX COURT REPORTS (274)
unlike the letters in the Friedland cases, the 2012 letters do
not affect petitioners’ opportunity to invoke our jurisdiction
over the 2013 letter.
B. Respondent’s Letters Sent to Whistleblower Claimants in
This Case, the Cooper Case, and the Friedland Cases
Cause Confusion About the Claimants’ Opportunity To
Seek Review in This Court.
In considering the effect, if any, the 2012 letters had on
our jurisdiction over the petition filed in response to the 2013
letter, we will review the text of letters sent by the Whistle-
blower Office to claimants in the instant case, the Friedland
cases, and, to provide perspective, the letter sent in Cooper.
The 2012 letters stated that petitioners are not eligible for
an award and invited them to contact the Whistleblower
Office. As stated supra p. 276, the 2012 letters stated that
‘‘you are not eligible for an award’’ and that ‘‘[i]f you have
any further questions in regards to this letter, please feel
free to contact the Informant Claims Examination Team’’ at
a phone number stated in the letter. 8
The letter rejecting the whistleblower claim in Cooper v.
Commissioner, 135 T.C. at 72, stated that ‘‘ ‘an award deter-
mination * * * [could not] be made under section 7623(b)’
because petitioner ‘did not identify * * * federal tax issue[s]
upon which the IRS will take action.’ ’’ (Fn. ref. omitted.) The
letter also indicated that an award was not warranted for
either claim because the taxpayer’s information did not
‘‘result in the detection of the underpayment of taxes.’’ Id.We held that the letter contained a determination for pur-
poses of section 7623(b)(4) and that we have jurisdiction over
the petition timely filed on the basis of that letter. Id. at 75–
76.
In Friedland I the whistleblower received four letters from
the Whistleblower Office relating to his claim. The first
letter, dated November 13, 2009, denied the claim and made
no reference to further administrative procedures available to
the whistleblower. In addition, the Whistleblower Office sent
a letter to the claimant in Friedland I stating that ‘‘he would
8 We do not have before us a petition filed in response to the 2012 let-
ters, and so we have no occasion to express our views as to whether we
would have had jurisdiction if petitioners had filed a petition in 2012.
(274) COMPARINI v. COMMISSIONER 281
have to appeal the determination through the court system,
not the Whistleblower Office.’’ Friedland I, slip op. at 6. The
claimant in Friedland I was also the claimant in Friedland
II.
In Friedland II the claimant received three letters from
the Whistleblower Office relating to his claim. The first of
those letters, dated March 3, 2011, denied the claim and
made no reference to administrative procedures available to
the whistleblower.
Whatever the significance of the differences among these
letters, we do not expect whistleblower award claimants
to parse letters they receive from the Whistleblower Office
to identify slight variations in those letters for clues as to
whether the 30-day period to file a petition has commenced.
As discussed below, section 7623(b)(4) does not impose this
burden.
C. Respondent’s Argument Gives Insufficient Regard to the
Text of Section 7623(b)(4).
As noted supra p. 277, section 7623(b)(4) provides that this
Court has jurisdiction with respect to matters addressed in
‘‘any’’ determination issued in response to a whistleblower
claim under section 7623(b). The Tax Court did not expressly
consider the significance of the grant of jurisdiction in section
7623(b)(4) over ‘‘any’’ timely petitioned determination in
Cooper, 9 in the Friedland cases, or in any other prior
opinion. We do so here.
The word ‘‘any’’ does not modify ‘‘determination’’ in any
other statute describing our jurisdiction. In comparison, sec-
tion 6015(e) provides our jurisdiction to determine whether a
taxpayer who filed jointly is entitled to relief from joint
liability after the Commissioner sends to the taxpayer a
‘‘final’’ determination.
By providing the Tax Court with jurisdiction over ‘‘any’’
timely petitioned determination, section 7623(b)(4) in some
respects parallels section 6212. Section 6212 authorizes the
Commissioner to send more than one notice of deficiency for
a taxable period unless the taxpayer has timely filed a Tax
9 In Cooper we found that the determination over which we exercised ju-
risdiction was ‘‘final’’. We did not have before us a determination which
was not ‘‘final’’, and so in Cooper we made no holding regarding whether
we would have jurisdiction over a determination which is not final.
282 143 UNITED STATES TAX COURT REPORTS (274)
Court petition in response to a prior notice of deficiency for
that taxable period. 10 This aspect of section 6212 shows that
in another area of our jurisdiction—deficiency cases—a peti-
tioner may file a petition in response to more than one letter
from the Commissioner.
Petitioners received letters from the Whistleblower Office
in 2012 in response to which they did not file a petition and
a letter in 2013 in response to which they did file a petition.
Because section 7623(b)(4) provides this Court with jurisdic-
tion over ‘‘any’’ determination, we hold that we have jurisdic-
tion over the petition filed in response to the 2013 letter. 11
If it were otherwise, the Commissioner could largely frus-
trate judicial review by issuing ambiguous denials that did
not seem to be, but were, determinations. Section 7623(b)(4)
provides an opportunity for petitioners to file a petition in
10 Sec. 6212 provides in pertinent part as follows:
SEC. 6212. NOTICE OF DEFICIENCY.
(a) IN GENERAL.—If the Secretary determines that there is a deficiency
in respect of any tax imposed by subtitle A or B or chapter 41, 42, 43,
or 44, he is authorized to send notice of such deficiency to the taxpayer
by certified mail or registered mail. * * *
* * * * * * *
(c) FURTHER DEFICIENCY LETTERS RESTRICTED.—(1) GENERAL RULE.—
If the Secretary has mailed to the taxpayer a notice of deficiency as pro-
vided in subsection (a), and the taxpayer files a petition with the Tax
Court within the time prescribed in section 6213 (a), the Secretary shall
have no right to determine any additional deficiency of income tax for
the same taxable year, * * *
See also Gmelin v. Commissioner, T.C. Memo. 1988–338, aff ’d without pub-
lished opinion, 891 F.2d 280 (3d Cir. 1989).
11 Dictionary definitions are entirely consistent with everyday under-
standing of ‘‘any’’. The American Heritage Dictionary 81 (5th ed. 2011) de-
fines ‘‘any’’ as follows: ‘‘adj. 1. One, some, every, or all without specification
* * * 2. Exceeding normal limits, as in size or duration’’. Similarly, in de-
fining ‘‘any’’, Webster’s Third New International Dictionary 97 (2002)
states: ‘‘adj. 1. : one indifferently out of more than two: one or some indis-
criminately of whatever kind: a: one or another * * * b: one, no matter
what one * * * c: one or some of whatever kind or sort * * * 2. one, some
or all indiscriminately of whatever quantity * * * 3. a: great, unmeasured,
or unlimited in amount, quantity, number, time, or extent’’. Of course,
when construing the word ‘‘any’’ (as when construing any statutory term),
we avoid literalistic interpretations that would contradict congressional in-
tent or produce absurd results. Cf. Util. Air Regulatory Grp. v. EPA, 573
U.S. ll, ll, 134 S. Ct. 2427, 2439–2445 (2014).
(274) COMPARINI v. COMMISSIONER 283
response to the 2013 letter even though they did not file a
petition in response to the 2012 letters.
The Court has gained a broader perspective on issues
arising in the developing whistleblower area in the time
since we decided the Friedland cases. In particular, we have
considered here distinctive language in section 7623(b)(4)—
i.e., ‘‘[a]ny determination’’ (emphasis added)—that was not
discussed by the Court in the Friedland cases. Taking into
account this broader perspective and the language of the
statute, the Court will not follow the holdings in the
Friedland cases to the extent they state or imply that it is
not possible for the Whistleblower Office to issue, as to a
given claim, more than one ‘‘determination’’ on which our
jurisdiction might be based.
IV. The Joint Concurring Opinion
The joint concurring opinion by Judge Halpern and Judge
Lauber agrees with the Court that we have jurisdiction here
but prefers an alternative basis for our jurisdiction. We base
our jurisdiction on the text of the 2013 letter, while the joint
concurring opinion would base our jurisdiction on petitioners’
representations about materials they sent to the Whistle-
blower Office after receiving the 2012 letters.
The ‘‘main concern with the opinion of the Court’’
expressed in the joint concurring opinion is ‘‘the way it han-
dles the Friedland cases’’, which the joint concurring opinion
would distinguish on their facts. See joint concurring op.
pp. 288, 291–292. Contrary to the suggestion of the joint
concurring opinion and as demonstrated by the difference of
opinion evidenced between this report and the joint concur-
ring opinion, reasonable minds may differ as to the breadth
and contours of the holdings in the Friedland cases. Indeed,
the joint concurring opinion finds it necessary to resort to the
record in Friedland I to draw conclusions about its holding
that are not apparent or inevitable from the text of the
opinion itself. See joint concurring op. p. 288. We believe that
the need to delve into the record of Friedland I to posit a
theory of the scope of its holding illustrates as well as any-
thing can that both Friedland cases are susceptible to the
types of interpretations which we expressly disapprove today
284 143 UNITED STATES TAX COURT REPORTS (274)
without the need to decide hypothetical issues not before us
in this case.
In addition, while it is possible, as the joint concurring
opinion does, to parse the Friedland cases and find factual
nuances that might be thought to distinguish them in one
way or another from this case, ultimately the factual distinc-
tions are so tenuous that seeking to define our jurisdiction by
reference to them risks contributing to confusion for claim-
ants as to the proper time for filing a petition, as described
infra pp. 287–288 of the joint concurring opinion, while also
increasing the burdens on the Court.
The joint concurring opinion states that in Friedland II the
claimant provided no new information to the Whistleblower
Office after receiving the first letter and in Friedland I the
claimant furnished additional information consisting not of
factual documentation but of alleged legal authority that the
Court found to be gratuitous, joint concurring op. pp. 290–
291; but here, in contrast, petitioners ‘‘apparently’’ provided
300 additional documents supporting and expanding their
claims. See id. p. 291. Thus, the essential difference between
the analysis of the opinion of the Court and that of the joint
concurring opinion is that the opinion of the Court bases our
Court’s jurisdiction on the text of the 2013 letter, and the
joint concurring opinion would find jurisdiction because peti-
tioners represent that they made new claims and submitted
additional materials to the Whistleblower Office after
receiving the 2012 letters.
However, the dispute between petitioners and the Whistle-
blower Office about the significance of those additional mate-
rials could not be more stark. Petitioners state that on
January 18, 2013, they provided 300 documents supporting
and expanding their claims (in addition to 500 documents
they say they provided in their original submission to the
Whistleblower Office). 12 In contrast, on the basis of the flat
rejection of petitioners’ claim made by the 2013 letter, it
appears that the Whistleblower Office completely disagreed
with petitioners’ expansive representations about additional
materials.
12 Because the claimed 800 documents are not in the record, we cannot
confirm petitioners’ description of the submissions.
(274) COMPARINI v. COMMISSIONER 285
The joint concurring opinion thus accepts as a basis for our
jurisdiction petitioners’ unverified assertion that the addi-
tional materials are new or noteworthy. We believe this could
invite abuse by unconscientious claimants in future cases. 13
Equally problematic, it would be burdensome and awkward
for the Court to verify claimants’ assertions about the new-
ness or significance of additional materials by comparing
them to the materials originally submitted to the Whistle-
blower Office—all to decide not the merits of the case but
merely the threshold question of jurisdiction.
The joint concurring opinion envisions the following
process for delving into potentially massive amounts of mate-
rials merely to resolve jurisdiction: ‘‘If there is any
uncertainty about * * * [whether petitioners made addi-
tional claims supported by additional documentation], the
Court has ample tools at its disposal, from stipulations to
evidentiary hearings, to eliminate that uncertainty.’’ See joint
concurring op. p. 291. The joint concurring opinion would
‘‘resolve any doubt against respondent as the movant and in
petitioners’ favor and we treat their followup letters as
making a different or supplemental claim.’’ See id. This
approach is further explained as follows: ‘‘If there are factual
uncertainties that must be resolved before ruling on a motion
to dismiss, the proper procedure is to resolve them or to
assume facts as not favoring the movant (respondent).’’ See
id. note 2.
Thus, using the approach urged by the joint concurring
opinion, claimants’ assertions about the newness or signifi-
cance of their claims would be assumed correct unless the
Court undertakes a hearing (using for purposes of discussion
petitioners’ assertions about the record here) to see whether
the 300 additional documents raise new or noteworthy claims
compared to the 500 documents previously submitted. We
find it unnecessary to address those knotty factual matters
in deciding our jurisdiction and instead base our jurisdiction
on the text of the 2013 letter.
The joint concurring opinion misstates the Court’s holding
as follows: ‘‘The Court[ ] hold[s] that a claimant may file a
petition, at his option, in response to any of a series of [iden-
13 This discussion relates to possible future cases and not to the conduct
of petitioners.
286 143 UNITED STATES TAX COURT REPORTS (274)
tical] letters referring to the denial of his claim’’. See id.
p. 295. On the contrary, the Court provides no views on a
hypothetical case involving ‘‘any of a series of [identical] let-
ters’’ and simply decides that the 2013 letter constitutes a
determination and that its status as a determination is not
negated, as respondent contends in reliance on the Friedland
cases, by the fact that the Whistleblower Office sent the 2012
letters.
The joint concurring opinion criticizes the statute because
it fails ‘‘to specify an unambiguous ‘ticket to the Tax Court’ ’’.
Joint concurring op. pp. 287–288. The joint concurring
opinion also disagrees with the reliance by the opinion of the
Court on the statute’s grant of our jurisdiction over ‘‘any’’
determination. See id. p. 294. The joint concurring opinion
would provide jurisdiction here only if the 2013 letter acted
on a new, different, or supplemental claim. See id. p. 291. In
contrast, we simply apply the plain language of the statute
in the most straightforward fashion, giving effect as best we
can to every word that Congress enacted, including the word
‘‘any’’.
V. Conclusion
In deciding whether we have jurisdiction, we are mindful
that ‘‘[w]here a statute is capable of various interpretations,
we are inclined to adopt a construction which will permit the
Court to retain jurisdiction without doing violence to the
statutory language. See Lewy v. Commissioner, 68 T.C. at
781, 783–786 [1977]’’. Smith v. Commissioner, 140 T.C. 48,
51 (2013). Congress intended to provide a whistleblower
claimant with the opportunity to invoke our jurisdiction after
the Commissioner acts on the claim. To date many of those
letters we have seen do not give claimants clear notice that
the statutory 30-day period to file a petition has begun to
run. We believe that adoption of the Commissioner’s conten-
tions in this case would create an unnecessary trap for
individuals seeking to invoke our jurisdiction under section
7623(b). We conclude that the 2013 letter constitutes a deter-
mination for purposes of section 7623(b)(4).
(274) COMPARINI v. COMMISSIONER 287
To reflect the foregoing, 14
An appropriate order denying respondent’s
motion to dismiss will be issued.
Reviewed by the Court.
THORNTON, FOLEY, VASQUEZ, GALE, GUSTAFSON, PARIS,
MORRISON, and NEGA, JJ., agree with this opinion of the
Court.
HALPERN and LAUBER, JJ., concurring: We agree that the
February 2013 letter from the Internal Revenue Service
(IRS) Whistleblower Office (Office) embodies a ‘‘determina-
tion regarding an award’’ within the meaning of section
7623(b)(4) and that, because petitioners filed a petition
within 30 days of that letter, the Court has jurisdiction over
this controversy. We therefore concur in the result reached
by the opinion of the Court. We write separately because we
have concerns about certain portions of the analysis in the
opinion and about how it treats our precedents in Friedland
v. Commissioner, T.C. Memo. 2011–90, 101 T.C.M. (CCH)
1422 (Friedland I), and Friedland v. Commissioner, T.C.
Memo. 2011–217, 102 T.C.M. (CCH) 247 (Friedland II)
(collectively, Friedland cases).
Section 7623(b)(4) provides that ‘‘[a]ny determination
regarding an award * * * may, within 30 days of such deter-
mination, be appealed to the Tax Court (and the Tax Court
shall have jurisdiction with respect to such matter).’’ Unlike
most statutory provisions granting us jurisdiction, section
7623(b)(4) does not prescribe any particular form of notice to
the taxpayer or would-be petitioner. Indeed, the statute does
not literally require written notice of any kind; it simply
requires the making of a ‘‘determination.’’
The statute’s failure to specify an unambiguous ‘‘ticket to
the Tax Court’’ has created serious interpretative and prac-
tical problems, both for whistleblowers and for the Court.
These problems have been compounded by the Office’s
14 While the February 2013 letter referred only to what the Whistle-
blower Office treated as one of four claims, the record does not show in
what respect it may have been a denial of part, instead of all, of peti-
tioners’ claim, and so we treat it as a denial of petitioners’ entire claim.
288 143 UNITED STATES TAX COURT REPORTS (274)
habit—commendable in many respects—of communicating
frequently with claimants during the claims investigation
process. These communications have employed verbiage that
is sometimes inconsistent about the status of the claim under
review. In some cases, this has caused claimants to file pre-
mature petitions in our Court, fearing that the 30-day juris-
dictional deadline would be triggered by an ambiguous
communication that might later be deemed a ‘‘determina-
tion.’’ In other situations, such as in the Friedland cases and
the instant case, claimants have engaged in further discus-
sions with the IRS after receiving the initial letter. They may
then find themselves confronted with the assertion that they
should have petitioned the Court immediately in response to
the first letter and that their claims are now time barred.
Our main concern with the opinion of the Court is the way
it handles the Friedland cases, whose facts resemble those
here. If the Court is going to hold that it has jurisdiction on
the basis of the February 2013 letter notwithstanding the
prior mailing of the 2012 letters, it must either distinguish
the Friedland cases or disapprove them. The Court declines
to do the former. And while not explicitly overruling those
precedents, it does do the latter, stating: ‘‘[T]he Court will
not follow the holdings in the Friedland cases to the extent
they state or imply that it is not possible for the Whistle-
blower Office to issue, as to a given claim, more than one
‘determination’ on which our jurisdiction might be based.’’
See op. Ct. p. 283.
We disagree with this action for two reasons. First, the
Friedland cases are distinguishable on their facts and,
accordingly, in order to find jurisdiction here, there is no
need to overrule or disapprove them. Second, it is error to
disapprove these cases because the Court has not shown that
they were wrongly decided.
In Friedland I, 101 T.C.M. (CCH) at 1422, the Office
issued the claimant a letter stating that the claim had been
evaluated and rejected. The claimant made further inquiries,
by letter and telephone, and he supplied ‘‘additional informa-
tion’’ regarding his claim. The record in Friedland I indicates
that this additional information consisted, not of new factual
material, but of a letter attaching legal authorities. The
Court described this information as ‘‘gratuitous[ ].’’ Ibid.(274) COMPARINI v. COMMISSIONER 289
The Office in Friedland I issued subsequent letters to the
claimant ‘‘confirming that * * * [his] additional information
had been received and considered but stating that the ‘deter-
mination remains the same despite the information con-
tained’ ’’ in the followup letters. 101 T.C.M. at 1422–1423.
The Court held that the first letter constituted a ‘‘determina-
tion’’ denying the whistleblower’s claim and that ‘‘[t]he subse-
quent three letters merely reaffirmed the initial determina-
tion in the first letter.’’ Id. at 1423. Because the claimant did
not file his petition within 30 days after the first letter was
issued, the Court held that it lacked jurisdiction under sec-
tion 7623(b)(4).
Friedland II involved the same claimant but a different
claim. In Friedland II, 102 T.C.M. (CCH) 247, the Office
issued a letter on March 3, 2011, in which it ‘‘denied * * *
[the whistleblower’s] claim.’’ The claimant made one or more
phone calls disputing the denial of his claim and sent a letter
asking the Office to reconsider its decision. The Office sent
him two subsequent letters, dated March 23 and April 11,
2011, that reaffirmed the March 3 determination. There is no
indication that the claimant submitted additional informa-
tion of any kind after receiving the March 3 letter. He filed
his Tax Court petition on April 13, 2011, 41 days after
issuance of the March 3 letter. The Court held that the
March 3 letter constituted ‘‘the determination’’ under section
7623(b)(4) and that it lacked jurisdiction because the claim-
ant did not petition within 30 days of that determination. Id.
at 248.
In the instant case, the Office processed petitioners’
application ‘‘as four separate claims designated with num-
bers ending in 48, 49, 50, and 51.’’ See op. Ct. p. 275. The
Office denied these claims in substantially identical letters
dated October 30 and November 15, 2012. These letters
informed petitioners that ‘‘the information you provided did
not result in the collection of any proceeds’’ and stated that
‘‘you are not eligible for an award.’’ See id. pp. 275–276.
Because the IRS is authorized to make a nondiscretionary
award only if it collects proceeds ‘‘based on information
brought to the Secretary’s attention by * * * [the claimant],’’
sec. 7623(b)(1), these letters unambiguously informed peti-
tioners that their claim was denied. The letters clearly
embodied ‘‘a final administrative decision regarding
290 143 UNITED STATES TAX COURT REPORTS (274)
petitioner[s’] whistleblower claims,’’ Cooper v. Commissioner,
135 T.C. 70, 76 (2010), and thus constituted a ‘‘determination
regarding an award’’ that would have enabled petitioners to
seek review in this Court under section 7623(b)(4). 1
In January 2013 ‘‘petitioners sent a letter to the Whistle-
blower Office in which they stated that they were submitting
additional information and making additional claims for the
years covered by the 2012 letters.’’ See op. Ct. p. 276. This
information, according to petitioners, included 300 additional
documents ‘‘supporting and expanding their claims.’’ See id.
note 5.
In response to this supplemental submission, the Office
sent petitioners a letter dated February 12, 2013, which
‘‘referred only to claim number 48.’’ It stated that ‘‘your claim
still does not meet our criteria for an award’’ and that ‘‘[o]ur
determination remains the same despite the information con-
tained in your latest letter.’’ See op. Ct. p. 276. The petition
was filed on March 12, 2013, within 30 days of the mailing
of the February 12, 2013, letter, but more than three months
after the mailing of the October and November 2012 letters.
Here, as in the Friedland cases, the Office sent petitioners
an initial letter embodying a ‘‘determination’’ that would
have provided this Court with jurisdiction, then sent a subse-
quent letter addressing their claims. In the Friedland cases,
we held that the claimant was required to petition the Court
in response to the first letter and that his attempted petition
in response to the subsequent letter(s) was jurisdictionally
out of time. Thus, unless the Friedland cases are distin-
guished or disapproved, or unless they are regarded as non-
binding because they were issued as Memorandum Opinions,
their holdings dictate that we lack jurisdiction in the instant
case because the petition was not filed within 30 days of the
first letter.
We believe that the Friedland cases are factually distin-
guishable. In Friedland II, the claimant did nothing after
1 The opinion of the Court declines to express a view on the question
whether ‘‘we would have had jurisdiction if petitioners had filed a petition
in 2012.’’ See op. Ct. note 8. The Court could answer this question in the
negative, however, only by disavowing our reasoning and result in Cooper,
135 T.C. at 76. And unless that question is answered in the affirmative,
there would be an obvious basis for distinguishing the Friedland cases and
no apparent reason for this case to be reviewed by the Court Conference.
(274) COMPARINI v. COMMISSIONER 291
receiving the first letter except complain about it; he pro-
vided no new information but simply sought reconsideration
of the Office’s prior adverse determination. In Friedland I,
101 T.C.M. at 1422, the claimant furnished additional
information consisting, not of factual documentation, but of
alleged legal authority that the Court found to be
‘‘gratuitous[ ].’’ Here, petitioners stated that they were pro-
viding 300 additional documents and also said they were
‘‘making additional claims for the years covered by the 2012
letters.’’ See op. Ct. p. 276 and note 5.
Because petitioners in their followup letters stated that
they were making additional claims supported by additional
documentation, it seems perfectly reasonable to regard them
as having made a new, additional, or supplemental claim for
an award and to treat the February 2013 letter as a ‘‘deter-
mination’’ denying this new, additional, or supplemental
claim. If there is any uncertainty about this, the Court has
ample tools at its disposal, from stipulations to evidentiary
hearings, to eliminate that uncertainty. Since the Court
declines to deploy these tools, we resolve any doubt against
respondent as the movant and in petitioners’ favor and we
treat their followup letters as making a different or supple-
mental claim. Since the petition was filed within 30 days of
the Office’s determination denying that different or supple-
mental claim, we can assume jurisdiction over this con-
troversy consistently with our holdings in the Friedland
cases. 2
The opinion of the Court declines to address these factual
differences between the Friedland cases and the instant case,
stating: ‘‘In holding that we have jurisdiction we have not
considered the substance or significance of additional
information petitioners submitted after they received the
2012 letters.’’ See op. Ct. note 5. We agree that in assessing
its jurisdiction the Court should focus carefully on ‘‘the text
of the 2013 letter.’’ Ibid. But the Court necessarily must also
2 Contrary to the Court’s assertion, we are not ‘‘accept[ing] as a basis for
our jurisdiction petitioners’ unverified assertion that the additional mate-
rials are new or noteworthy.’’ See op. Ct. p. 285. The Court seems to forget
that it is ruling on a motion to dismiss. If there are factual uncertainties
that must be resolved before ruling on a motion to dismiss, the proper pro-
cedure is to resolve them or to assume facts as not favoring the movant
(respondent).
292 143 UNITED STATES TAX COURT REPORTS (274)
consider to what that letter was responding. Was the Office
simply reiterating a determination that it had previously
made, as in the Friedland cases? Or was it responding to
something new and different? 3
The IRS determination that affords this Court jurisdiction
is a determination regarding a ‘‘claim for an award.’’ See sec.
7623(b)(3). Petitioners stated in their January 2013 letter
that they were ‘‘making additional claims for the years cov-
ered by the 2012 letters’’ and were submitting additional
documentation to support those claims. See op. Ct. p. 276. If
in fact petitioners were making additional claims to which
the January 2013 letter was responding, that is a fact that
cannot properly be ignored. Whether petitioners made dif-
ferent or additional claims is critical in assessing whether
this case differs in a legally significant way from the
Friedland cases. 4
The opinion of the Court declines to examine the substance
of petitioners’ supplemental claims or to distinguish the
Friedland cases on their facts. But where it actually leaves
the Friedland holdings is not entirely clear. The Court says
that it ‘‘will not follow the holdings in the Friedland cases to
the extent they state or imply that it is not possible for the
Whistleblower Office to issue, as to a given claim, more than
3 Courts must consider the substance of a claimant’s communications
with the IRS when addressing the scope of its jurisdiction in other con-
texts. For example, when evaluating a jurisdictional challenge in a tax re-
fund suit under the ‘‘variance doctrine,’’ a court must determine whether
the claims asserted in the taxpayer’s refund suit vary from the claims as-
serted in the administrative refund claim. See, e.g., El Paso CGP Co.,
L.L.C. v. United States, 748 F.3d 225, 228–229 (5th Cir. 2014); IA 80
Grp., Inc. v. United States, 347 F.3d 1067, 1073–1074 (8th Cir. 2003);
Charter Co. v. United States, 971 F.2d 1576, 1579 (11th Cir. 1992); Ot-
tawa Silica Co. v. United States, 699 F.2d 1124, 1138 (Fed. Cir. 1983).
4 The opinion of the Court suggests that it will be a daunting mission
to ascertain, when ruling on a motion to dismiss, whether the Office is
simply reiterating a prior determination or rejecting a new or supple-
mental claim. See op. Ct. p. 285. We disagree with that assessment. In
Friedland II, it was obvious that the claimant, who submitted no new in-
formation, was simply quarreling with the prior determination. And in
Friedland I, 101 T.C.M. at 1422, the Court had no difficulty discerning
that the claimant’s supplemental information was ‘‘gratuitous[ ].’’ The track
record so far does not suggest that this exercise will be burdensome. In
any event, the Court is obligated to resolve factual disputes that bear upon
the propriety of granting a motion to dismiss.
(274) COMPARINI v. COMMISSIONER 293
one ‘determination’ on which our jurisdiction might be
based.’’ See op. Ct. p. 283. But this apparent disapproval of
the Friedland cases makes little sense, because neither
opinion states or implies any such thing.
The Court in Friedland II said that it was confronted with
‘‘a substantially identical situation’’ as in Friedland I,
namely, a situation where the Office’s subsequent letters
‘‘ ‘merely reaffirmed the initial determination in the first
letter.’ ’’ Friedland II, 102 T.C.M. (CCH) at 248 (quoting
Friedland I, 101 T.C.M. (CCH) at 1423). The Friedland cases
do not hold that it is impossible for the Office to make more
than one determination on the same claim. Rather, they hold
that this did not happen on the facts presented because the
second letter was not a distinct ‘‘determination’’ but in effect
a mere cross-reference to a prior ‘‘determination.’’
The key questions, we think, are whether ‘‘the claim’’ and
‘‘the determination’’ remain the same. The Friedland cases
considered the claims not to have changed and treated the
subsequent letters as simply reiterating the denial of those
claims. But if the claim does change—e.g., if the claimant
submits substantial additional documentation, expands his
existing claim, or makes new claims—it is entirely possible
for the Office to make a second determination (positive or
negative) that will afford us jurisdiction. Indeed, that is
exactly what we think happened here: the Office did make a
second determination regarding petitioners’ universe of
claims and, because those claims had changed, we have juris-
diction to review the second determination consistently with
the Friedland cases. 5
If a rule of law is to be generalized from the Friedland
cases, it is that, if a claimant fails timely to file a petition
in response to a determination letter and receives a subse-
quent letter reiterating the same determination on the same
claim, the subsequent letter does not start another 30-day
period for petitioning the Tax Court. The opinion of the
Court declines to address that critical question, namely,
whether a second, substantially identical, denial letter can
5 Again, if there is any uncertainty about the substantiality of peti-
tioners’ supplemental claims or the Office’s denial of them, the proper pro-
cedure is to resolve that factual dispute by an evidentiary hearing or oth-
erwise.
294 143 UNITED STATES TAX COURT REPORTS (274)
start another petition period. The Court rationalizes its
refusal to address this problem on the ground that it pre-
sents ‘‘a hypothetical case.’’ See op. Ct. p. 286. But this is
exactly the fact pattern that the Court believed it faced in
both Friedland cases. We do not understand how the Court
can conclude that the Friedland cases must be disapproved
while declining to address as ‘‘hypothetical’’ the fact pattern
that they display.
In ruling that a claimant may file a petition in response
to any of a series of similar letters involving a negative
determination on the same claim, the Court focuses on the
phrase ‘‘[a]ny determination regarding an award’’ in section
7623(b)(4). It infers from Congress’ use of the word ‘‘any’’
that a claimant may be able to file a petition ‘‘in response to
more than one letter from the Commissioner.’’ See op. Ct. pp.
281–283. The Court analogizes this situation to one where
the IRS sends multiple notices of deficiency for a particular
year, enabling the taxpayer to file separate petitions in
response to the various notices. See id. pp. 281–282.
This analogy does not hold water. When the Commissioner
sends multiple notices of deficiency for a given year, the
second notice invariably involves different determinations—
e.g., different items of income, different deductions, or dif-
ferent dollar amounts—from those in the first notice. That is
not so in the Friedland paradigm. In those cases, the IRS
made a determination in the first letter—that the claim for
an award was rejected—and issued a second letter that
refused to disturb that very same determination. 6
In any event, Congress’ use of the word ‘‘any’’ will not bear
the weight that the opinion of the Court places upon it. A
common meaning of ‘‘any’’ is simply ‘‘a’’ or ‘‘one.’’ See op. Ct.
note 11. In the Friedland cases, the Office made ‘‘a deter-
mination’’ in the first letter. The Office then sent the claim-
ant a second letter that said in effect: ‘‘We are not changing
our determination.’’ That second letter did not constitute a
6 The Court’s analogy is also strained because there is a statutory regime
in place to deal with the problem of multiple notices of deficiency. Section
6212(c)(1) prohibits the sending of a second notice of deficiency once the
taxpayer has timely petitioned the Court in response to an initial notice
of deficiency for the same year, except in cases of fraud, jeopardy and ter-
mination assessments, and correction of mathematical errors.
(274) COMPARINI v. COMMISSIONER 295
distinct ‘‘determination’’; it simply repeated the determina-
tion that had already been made.
The Court’s holding that a claimant may file a petition, at
his option, in response to any of a series of letters referring
to the denial of his claim is difficult to reconcile with the 30-
day jurisdictional filing period that Congress placed in sec-
tion 7623(b)(4). The Office has not hesitated to send multiple
letters to claimants in an effort to demonstrate its good faith
in acknowledging their queries and submissions. A claimant
who has received a determination letter denying his claim
and who has neglected to file a Tax Court petition within 30
days may have little difficulty stimulating the issuance by
that Office of one or more additional letters reaffirming the
previous letter(s). If each subsequent letter falls within the
statutory phrase ‘‘any determination,’’ claimants can end-run
the 30-day jurisdictional filing period with comparative
impunity. The Court provides no reason to believe that Con-
gress intended so unlikely a result. 7
In sum, there is no dispute that the Office can make more
than one ‘‘determination’’ with respect to a claimant’s claim
or universe of claims. If the claim is different, then the deter-
mination will be different, and this Court can properly
assume jurisdiction over the subsequent determination. That
is what we think the Court should do here. But if the claim
is not different and the determination is the same, and if the
petition is filed more than 30 days after the original deter-
mination, the Court should hold that it lacks jurisdiction, as
the Court in the Friedland cases correctly did. 8
7 In light of the Court’s holding, the Office might change its letter-writ-
ing habits. Once it has sent the claimant a ‘‘determination’’ that denies his
claim—that is, a letter that ‘‘constitutes a final administrative decision re-
garding [his] claim,’’ Cooper, 135 T.C. at 76—any response to a request for
reconsideration might simply say: ‘‘We issued our determination denying
your claim on [date.]’’ One would hope that the Court would not regard
this as a distinct ‘‘determination’’ that begins another 30-day jurisdictional
filing period. Otherwise, the Office might be better off just ignoring all sub-
sequent communications from claimants about their rejected claims.
8 On the basis of the text of the February 2013 letter and petitioners’
timely petition thereto, the opinion of the Court holds that the February
2013 letter constitutes a ‘‘determination’’ that we may review. During that
review, surely respondent will ask us to undertake what the Court sug-
gests is a ‘‘knotty factual [inquiry],’’ see op. Ct. p. 285, as to whether, by
Continued
296 143 UNITED STATES TAX COURT REPORTS (274)
GOEKE, HOLMES, KERRIGAN, and BUCH, JJ., agree with
this concurring opinion.
GOEKE and KERRIGAN, JJ., concurring: We continue to
believe that SECC v. Commissioner, 142 T.C. 225 (2014), was
incorrectly decided, and we find the citations of that Opinion
in the opinion of the Court in this case to be misleading and
unnecessary. However, the present matter does not involve a
liability subject to assessment, which in itself distinguishes
it from SECC.
Our dissent in SECC rested on Congress’ instruction to
treat determinations of worker classification like notices of
deficiency. See id. at 242 (Goeke and Kerrigan, JJ., dis-
senting) (citing section 7436(d)(1)). On the basis of that
instruction, we relied on our notice of deficiency jurispru-
dence to determine that the letter at issue was not a notice
of determination of worker classification.
Congress has not instructed us to treat whistleblower
award determinations like notices of deficiency. We noted
this in our SECC dissent in criticizing the Court’s reliance on
whistleblower cases to bolster its Opinion. Id. at 246. Simi-
larly, we think the opinion of the Court’s references to SECC
here are misplaced.
As the opinion of the Court notes, we have often found that
generic letters concerning whistleblower awards trigger our
the February 2013 letter, the Office simply reiterated a prior determina-
tion (respondent’s view) or rejected a new or supplemental claim (peti-
tioners’ view). Let us assume that the Court finds the former (i.e., that the
Office merely reiterated a prior determination). What would the Court
then do? Would we put that finding aside and consider the merits of re-
spondent’s twice-made determination? If so, we would be sanctioning a
clear end run around the 30-day jurisdictional filing provision that Con-
gress has placed in the statute. If we would not put the finding aside, but
instead dismiss the case for what at bottom would be petitioners’ failure
to have petitioned timely in response to the first determination, would we
not (however we labeled it) be dismissing for lack of jurisdiction, as we did
in the Friedland cases? In any event, the knotty factual inquiry likely can-
not be avoided, and we see no reason to postpone making it.
(274) COMPARINI v. COMMISSIONER 297
jurisdiction under section 7623(b)(4). On the basis of our
whistleblower jurisprudence only, we concur in the result
here.
f