United States Tax Court

T.C. Memo. 2022-47

TIMOTHY J. LEWIS,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket No. 10007-20W. Filed May 9, 2022.

—————

Thomas C. Pliske, for petitioner.

Jessica R. Nolen, for respondent.

MEMORANDUM OPINION

GREAVES, Judge: This whistleblower case under section 

7623(b)1 is before the Court on respondent’s Motion to Dismiss for Lack 

of Jurisdiction (Motion). For the reasons set forth below, we agree with 

respondent and will grant the Motion.

Background

The following facts are undisputed and drawn from the parties’ 

motion papers and attached exhibits, unless otherwise stated.

In 2011 petitioner submitted Form 211, Application for Award for 

Original Information, to respondent’s Whistleblower Office (WBO)

alleging underpayments in income tax by a closely held corporation

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

Revenue Code (Code), Title 26 U.S.C., in effect at all relevant times, and all regulation 

references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all 

relevant times.

Served 05/09/22
2 

[*2] (2011 claims). In response to the 2011 claims, the WBO sent a letter 

to petitioner on June 9, 2017 (final determination letter), stating that 

the WBO had determined that petitioner was entitled to a “mandatory” 

whistleblower award under section 7623(b).2 The letter specified the 

total amount of the award3 and stated that, in accordance with the 

Budget Control Act of 2011, Pub. L. No. 112-25, §§ 101–103, 125 Stat.

240, 241–46, as amended by the American Taxpayer Relief Act of 2012,

Pub. L. No. 112-240, § 901, 126 Stat. 2313, 2370, the award would 

automatically be reduced by a certain percentage as determined 

annually by the Office of Management and Budget for the year in which

the WBO ultimately paid the award (sequestration reduction). 

Petitioner appealed the final determination letter to this Court

and argued, among other things, that it was inappropriate for the WBO 

to apply the sequestration reduction to his award. See Lewis v. 

Commissioner (Lewis I), 154 T.C. 124, 138–41 (2020). We upheld the 

sequestration reduction on the basis of the applicable reduction 

percentage “in effect for the fiscal year that the award is [ultimately]

paid.” Id. at 141. In accordance with our decision, the WBO issued 

petitioner a whistleblower award check on August 7, 2020 (award 

check), which included a sequestration reduction using the applicable 

percentage in effect at the time of the payment.4

 Petitioner thereafter filed the Petition that forms the basis of this 

case with this Court challenging the appropriateness of the 

sequestration reduction. Petitioner argues that the award check 

constitutes a section 7623(b)(4) “determination” that confers jurisdiction 

on this Court. Respondent disagrees and subsequently filed the Motion 

before us, asking this Court to dismiss petitioner’s Petition on the 

ground that this Court lacks jurisdiction. 

2 The final determination letter incorrectly designated the award as 

discretionary under section 7623(a), but the parties agreed that the incorrect 

designation was harmless.

3 The final determination letter also notified petitioner that the total award 

amount was subject to a specified increased amount based on “[a]dditional amounts, 

such as tax attributes, that may be collected post-decision based on the information 

provided by” petitioner (postdecision proceeds).

4 The award check included the postdecision proceeds as specified in the final 

determination letter. 
3 

[*3] Discussion

We are a court of limited jurisdiction and may exercise 

jurisdiction only to the extent authorized by Congress. Judge v. 

Commissioner, 88 T.C. 1175, 1180–81 (1987); Naftel v. Commissioner, 

85 T.C. 527, 529 (1985). We are without authority to enlarge upon that 

statutory grant. McCrory v. Commissioner, 156 T.C. 90, 93 (2021). We 

nevertheless have jurisdiction to determine whether we have 

jurisdiction. Id.

 Section 7623(b)(1) authorizes the Commissioner to pay 

mandatory whistleblower awards if certain requirements are met. 

Section 7623(b)(4) in turn provides that “[a]ny determination regarding 

an award under [section 7623(b)(1), (2), or (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).” See also Kasper v. 

Commissioner, 150 T.C. 8, 21–23 (2018) (adopting an abuse of discretion 

standard of review for whistleblower award determinations). Thus, the 

jurisdiction of this Court is dependent upon a finding that a 

“determination” has been made by the Commissioner. McCrory, 156 

T.C. at 94. Unlike most other sections of the Code that confer 

jurisdiction on this Court, “[s]ection 7623 does not clearly define what 

constitutes a ‘determination’ or require that the whistleblower be issued 

any particular form of notice.” Id. We have previously held that for a 

determination to be appealable to this Court it must at a minimum

communicate a “final administrative decision” regarding the 

whistleblower’s claim in accordance with the Commissioner’s 

established award determination procedures. Id. at 97; cf. Li v. 

Commissioner, 22 F.4th 1014, 1017 (D.C. Cir. 2022) (“The Tax Court 

lacks jurisdiction to hear appeals from threshold rejections of 

whistleblower award requests.”).

Petitioner received a final determination letter with respect to the 

2011 claims, which included a notification that his award would be 

subject to the sequestration reduction rate in effect at the time of the 

award payment. Petitioner then appealed that determination before 

this Court in Lewis I under section 7623(b)(4) and expressly raised the

sequestration reduction issue as part of that action. We decided in

Lewis I that we had jurisdiction to hear the sequestration reduction 

issue with respect to the 2011 claims as the final determination letter 

constituted an appealable determination within the meaning of section 

7623(b)(4). Lewis I, 154 T.C. at 138. We addressed in Lewis I whether 

it was an abuse of discretion for the WBO to apply the sequestration 
4 

[*4] reduction against petitioner’s award, and we held that it was not. 

Id. at 138–41. Neither party denies that the Court had jurisdiction to 

render that holding as part of the decision in Lewis I. Thus, we must 

determine whether there is a new basis for jurisdiction under section 

7623(b)(4) with respect to the 2011 claims, i.e., whether the WBO issued 

another “final administrative decision” after the final determination 

letter. 

 There may be instances in which it is appropriate for the

Commissioner to issue more than one final determination with respect 

to the same claim. See, e.g., Whistleblower 769-16W v. Commissioner, 

152 T.C. 172, 182 (2019) (remanding the case to the WBO for further 

consideration and a supplemental determination); Treas. Reg. 

§ 301.7623-4(d)(2) (providing that the WBO can reject a claim and then 

issue an entirely separate determination rejecting, denying, or issuing 

an award on the same claim based on a separate and subsequent

consideration). Petitioner contends that his case presents a situation of 

multiple final determinations. He relies on a footnote in Lewis I where 

we noted that the “[i]ssuance of an award check is a determination 

appealable to this Court.” Lewis I, 154 T.C. at 138 n.10 (citing 

Whistleblower 4496-15W v. Commissioner, 148 T.C. 425, 430 (2017)). 

Petitioner’s interpretation of the footnote is misplaced, however, as it 

cannot be properly construed without consideration of its supporting 

citation. 

In Whistleblower 4496-15W, 148 T.C. at 432, we found that a 

whistleblower’s award check constituted an appealable determination 

within the meaning of section 7623(b)(4) where the WBO did not issue a 

final determination letter confirming the amount of the whistleblower’s 

award. The only “final decision” the whistleblower received in that case 

concerning his award amount was the award check itself. See id. at 426–

29. Under those conditions, we found that the award check embodied 

the equivalent of a final determination letter notifying the 

whistleblower of its “final administrative decision” regarding his award, 

i.e., an appealable determination under section 7623(b)(4). Id. at 432. 

Unlike the whistleblower in Whistleblower 4496-15W, petitioner 

received a final determination letter with respect to his 2011 claims

specifying the amount he would be entitled to receive as an award, 

including the WBO’s final decision as to the application of the 

sequestration reduction against that amount, which provided him an 

“avenue for securing judicial review” of that final decision and which he 

exercised. Cf. id. at 434. Thus, we recognize that an award check can
5 

[*5] be an appealable determination in certain circumstances, but this 

is not one of those instances.

The WBO issued petitioner the award check for the 2011 claims

pursuant to the terms of the final determination letter, which we upheld 

in Lewis I. Accordingly, we do not find that petitioner received a 

separate “final determination” that would provide this Court with 

jurisdiction under section 7623(b)(4) to review the award check. 

To reflect the foregoing,

An appropriate order of dismissal for lack of jurisdiction will be 

entered.