t c memo united_states tax_court john d nye and rose m nye petitioners v commissioner of internal revenue respondent docket no filed date james l chase for petitioners john w sheffield iii and edwin b cleverdon for respondent memorandum opinion chiechi judge this case is before the court on respondent’s motion for summary_judgment as supplemented the court shall grant that motion respondent filed a motion for summary_judgment respondent’s motion petitioners filed a response to respondent’s motion petitioners’ response and continued background the record for purposes of respondent’s motion establishes the parties agree with and or the parties do not dispute the following factual background petitioners resided in florida at the time they filed the petition on date the circuit_court in and for the county of santa rosa florida santa rosa circuit_court issued a final judgment titled final judgment for dissolution of marriage dissolution judgment with respect to the petition for dissolution of marriage that john david nye mr nye a petitioner herein had filed in that court in the dissolution judgment the santa rosa circuit_court ordered and adjudged inter alia that the marriage between mr nye and alice c nye was dissolved the dissolution judgment also ordered and adjudged that the parties mr nye and alice c nye have freely and voluntarily entered into a separation and property settlement agreement dated august continued respondent filed a reply to petitioners’ response respondent’s reply the court did not find respondent’s motion petitioners’ response and respondent’s reply to be helpful in resolving the issue presented in respondent’s motion as a result the court ordered the parties to supplement their respective filings respondent filed a supplement to respondent’s motion and petitioners filed a supplement to petitioners’ response unfortunately the court did not find those respective supplements to be helpful the original being attached hereto incorporated herein and the parties shall comply with its terms the separation and property settlement agreement dated date property settlement agreement that the santa rosa circuit_court incorporated into its dissolution judgment the terms of which that court required mr nye and alice c nye to follow provided in pertinent part alimony the husband shall pay to the wife as and for permanent alimony the sum of dollar_figure per month to be paid on the first day of each month beginning with the first day of the first month after the execution of this agreement and continuing in a like manner until the wife dies or remarries or until the husband dies in addition to permanent alimony the husband shall pay rehabilitative alimony in the amount of dollar_figure per month for thirty months beginning with the first day of the first month after execution of this agreement the rehabilitative alimony shall terminate upon the remarriage of the wife or upon the death of either party lump sum alimony as and for lump sum alimony the husband agrees to assist the wife in the purchase of a home to be the parties herein are in agreement that mr nye and alice c nye agreed as part of their property settlement agreement that at the earlier of mr nye’s death or the death of both of his parents mr nye would transfer to alice c nye title to certain real_property titled in his name subject_to any existing mortgage mr nye’s real_property they also agree that at the time of the divorce judgment mr nye’s parents were residing in that real_property in addition the parties agree that the estimated value of mr nye’s real_property was dollar_figure although they disagree as to when that property was so valued the parties also disagree about whether the mortgage loan to which mr nye’s real_property was subject at the time it was so valued was dollar_figure or dollar_figure those disagreements are not material to our determination of whether to grant respondent’s motion titled in her name should she choose to buy another home within three years of the date of this agreement if the wife elects to purchase a home within three years of the date of this agreement the husband shall provide for her down payment not to exceed dollar_figure the wife shall give the husband no less than days notice of her intent to purchase a home and her demand that he provide the down payment up to dollar_figure medical insurance for wife as additional support for the wife the husband shall attempt to obtain and shall maintain major medical health insurance for the wife and provide her with proof of insurance and claims information if the wife is uninsurable or if the husband is otherwise unable to obtain insurance for her he shall pay dollar_figure per month directly to the wife in lieu of providing major medical insurance this insurance obligation shall continue as long as the husband is obligated to pay permanent alimony around the end of alice c nye filed with the santa rosa circuit_court a document titled supplemental petition for modification petition for modification of dissolution judgment in that petition alice c nye requested that court to modify its dissolution judgment by increasing the amount of support payable to her by the former husband mr nye in the form of alimony and in the form of additional funds to purchase medical insurance for herself as provided for in the final judgment dissolution judgment which adopted and incorporated the parties’ marital settlement agreement property settlement agreement mr nye also filed a petition with the santa rosa circuit_court the record does not establish what mr nye sought in that petition on date while alice c nye’s petition for modification of dissolution judgment was pending in the santa rosa circuit_court dissolution judgment modification case she and mr nye signed a document titled mediation settlement agreement mediation agreement in that agreement alice c nye and mr nye agreed to the following settlement of that dissolution judgment modification case pending in the santa rosa circuit_court the undersigned parties hereby agree to fully settle this case as follows fh mr nye to pay fw alice c nye dollar_figure before date and fully promptly pay all alimony until fw receives the dollar_figure and fw to quit claim whisper pine dr gulf breeze to fh after payment no further alimony insurance other obligations shall be due from fh to fw each party to pay own attorneys fees and costs november december alimony payments past due shall be paid no later than date by letter dated date ms anderson’s date letter kathleen e anderson ms anderson the attorney who was representing alice c nye in the dissolution judgment modification case notified james l chase mr chase who was representing mr nye in that case that inter alia she would not file with and for consideration by the santa rosa circuit_court a proposed final judgment resolving alice c nye’s petition for modification of mr chase also is attorney of record for petitioners in the instant case dissolution judgment until mr nye made on or before date a payment of dollar_figure to alice c nye to which he had agreed in the mediation agreement ms anderson’s date letter stated we received a telephone call from your office inquiring as to the proposed final judgment of modification pursuant to my previous correspondence to you i will not file this document until your client has paid mine if your client pays mine prior to the drop dead date as set forth in the agreement then upon receipt of the funds due and owing to my client i will forward the proposed final judgment of modification to the court i enclose herewith a proposed final judgment of modification for your review and initialing however again i will not forward this document along to the court until my client has been paid similarly and as previously stated in my correspondence to you my client will not execute the quit claim deed of the property to your client until she has received the funds due and owing to her as set forth in the mediated settlement agreement i am sure you understand my rationale for this on date mr nye made a payment of dollar_figure dollar_figure payment to alice c nye to which he had agreed in the mediation agreement thereafter on date the santa rosa circuit_court issued a final judgment titled final judgment of modification modification judgment in the dissolution judgment modification case in the modification judgment that court incorporated by reference into that judgment and approved the mediation agreement between mr nye and alice c nye the modification judgment ordered and adjudged the parties’ mediation settlement agreement entered into and executed by the respective parties on date is hereby adopted by the court and the parties are ordered to comply with the terms and conditions set forth in the attached mediation and settlement agreement petitioners filed a federal_income_tax tax_return for their taxable_year return in that return they claimed an alimony deduction under sec_215 for the dollar_figure payment that mr nye made to alice c nye on date respondent issued to petitioners a notice_of_deficiency notice with respect to their taxable_year in that notice respondent disallowed dollar_figure of the dollar_figure payment that petitioners claimed as an alimony deduction in their return and allowed dollar_figure of that payment as an alimony deduction in the all section references are to the internal_revenue_code in effect for the year at issue all rule references are to the tax_court rules_of_practice and procedure the dollar_figure of the dollar_figure payment that respondent allowed as an alimony deduction in the notice is equal to the sum of the respective amounts for permanent alimony dollar_figure and for medical insurance dollar_figure that mr nye was required to pay each month under the property settlement agreement that was incorporated into the dissolution judgment the dollar_figure that respondent allowed as an alimony deduction in the notice is not at issue in this case notice respondent also determined that petitioners are liable for their taxable_year for the accuracy-related_penalty under sec_6662 in the petition petitioners alleged error solely with respect to respondent’s determination that they are not entitled to deduct as alimony for their taxable_year the full amount of mr nye’s dollar_figure payment to alice c nye they alleged no error in the petition with respect to respondent’s determination to impose on them the accuracy-related_penalty under sec_6662 discussion the issue presented in respondent’s motion is whether petitioners are entitled to deduct as alimony under sec_215 dollar_figure payment at issue of the dollar_figure payment that mr nye made to alice c nye on date before the santa rosa circuit_court issued its modification judgment on date into which that court incorporated the mediation agreement that required mr nye to make that dollar_figure payment to alice c nye respondent made certain other determinations in the notice the resolution of the propriety of which depends on our resolution of the issue under sec_215 presented in respondent’s motion in fact petitioners alleged in the petition that t he only issue is the deductibility of the dollar_figure as alimony see supra note petitioners do not claim that the court should deny respondent’s motion on the ground that there is any genuine dispute as to any material fact for trial that the court must first resolve before deciding whether petitioners are entitled to deduct as alimony under sec_215 the payment at issue in fact in petitioners’ response petitioners ask the court not only to deny that motion but also to grant summary_judgment in favor of the petitioners the court agrees with the parties that there is no genuine dispute as to any material fact for trial the court disagrees with petitioners that it should deny respondent’s motion and that they are entitled to summary adjudication in their favor on the issue under sec_215 presented in that motion sec_215 allows an individual to deduct an amount equal to the alimony or separate_maintenance payments paid during such individual’s taxable_year sec_215 defines the term alimony_or_separate_maintenance_payment for purposes of sec_215 to mean any alimony_or_separate_maintenance_payment as defined in sec_71 which is includible in the gross_income of the recipient under sec_71 sec_71 provides the following definition of the term alimony_or_separate_maintenance_payment sec_71 alimony and separate_maintenance payments b alimony or separate_maintenance payments defined --for purposes of this section-- in general --the term alimony_or_separate_maintenance_payment means any payment in cash if-- a such payment is received by or on behalf of a spouse under_a_divorce_or_separation_instrument b the divorce_or_separation_instrument does not designate such payment as a payment which is not includible in gross_income under this section and not allowable as a deduction under sec_215 c in the case of an individual legally_separated from his spouse under a decree of divorce or of separate_maintenance the payee spouse and the payor spouse are not members of the same household at the time such payment is made and d there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment in cash or property as a substitute for such payments after the death of the payee spouse sec_71 provides the following definition of the term divorce_or_separation_instrument used in sec_71 and b sec_71 alimony and separate_maintenance payments b alimony or separate_maintenance payments defined --for purposes of this section-- divorce_or_separation_instrument --the term divorce_or_separation_instrument means- a a decree of divorce or separate_maintenance or a written instrument incident to such a decree b a written_separation_agreement or c a decree not described in subparagraph a requiring a spouse to make payments for the support or maintenance of the other spouse the parties agree that the payment at issue must meet all four requirements in sec_71 through d in order to constitute an alimony_or_separate_maintenance_payment that is deductible under sec_215 and includible in the income of the recipient under sec_71 they disagree as to whether that payment satisfies the requirement in sec_71 and the requirement in sec_71 consistent with sec_71 sec_61 defines gross_income to mean all income from whatever source derived including alimony and separate_maintenance payments it is respondent’s position that the payment at issue satisfies neither sec_71 nor sec_71 the court considers only whether the payment at issue satisfies the requirement in sec_71 that is because resolution of that question resolves the issue of whether petitioners are entitled to deduct that payment as alimony under sec_215 the parties agree that on date the effective date of the mediation agreement between mr nye and alice c nye that agreement became binding on mr nye and alice c nye and mr nye became obligated pursuant thereto to make the dollar_figure payment to alice c nye on or before date the requirement in sec_71 is satisfied if the payor has no liability to make any payment for any period after the death of the payee spouse and no liability to make any payment in cash or property as a substitute for such payments after the death of the payee spouse whether that requirement is satisfied is determined by the terms of the applicable instrument or if the instrument is silent on the matter by state law see kean v commissioner tcmemo_2003_163 aff’d 407_f3d_186 3d cir the court turns first to the terms of the mediation agreement that agreement is silent as to whether mr nye’s obligation in that agreement to make the dollar_figure payment to alice c nye would have terminated if she or he had died after date the effective date of that agreement and before the santa rosa circuit_court had decided what if any_action to take with respect to alice c nye’s petition for modification of dissolution judgment that was pending in that court because the mediation agreement is silent the court turns for guidance to the law of the state of florida florida law the court finds van boven v first nat’l bank in palm beach so 2d fla dist ct app to be instructive like the instant case van boven involved a divorced couple who had entered into a written_agreement van boven separation agreement that provided inter alia for the payment of periodic alimony by the former husband to the former wife and that the local florida circuit_court florida circuit_court had approved and incorporated into the final decree divorcing them van boven divorce decree id pincite as is true in the instant case in van boven the former husband filed in the florida circuit_court a petition for modification of the van the court’s research did not lead the court to any opinion of the florida supreme court the highest court in florida that had like van boven v first nat’l bank in palm beach so 2d fla dist ct app facts essentially the same as the facts involved in the instant case in the instant case both the former husband and the former wife filed a petition boven divorce decree van boven modification proceeding in which he sought to modify the amount of the periodic alimony payments that he was obligated under that divorce decree to make to the former wife id as is also true in the instant case in van boven during the pendency of the van boven modification proceeding the former husband and the former wife entered into a written_agreement van boven settlement agreement to settle that proceeding like the mediation agreement involved in the instant case the van boven settlement agreement involved in the van boven case provided that the former husband agreed to pay a lump sum of money to the former wife in exchange for her agreement to discharge him from his obligation under the van boven divorce decree to pay periodic alimony to her id pincite in contrast to the instant case however in van boven the former wife died before the former husband had made full payment to her of the lump sum of money that he was required to pay to her under the van boven settlement agreement and before the florida circuit_court had decided what if any_action to take with respect to the van boven modification proceeding id after the former the lump sum of money that the former husband agreed in the van boven settlement agreement to pay to the former wife was payable in installments van boven so 2d pincite see supra note wife died the executor of her estate was substituted as a party in the van boven modification proceeding and filed a separate petition for modification of the van boven divorce decree van boven so 2d pincite in that petition for modification the executor of the former wife’s estate asked the florida circuit_court to approve the van boven settlement agreement enter a judgment modifying the van boven divorce decree by incorporating that agreement into that decree and order the former husband to comply with the modified van boven divorce decree id after concluding that the van boven settlement agreement did not provide for the payment of alimony but instead provided for the payment of a lump sum of money in lieu of all claims of alimony the florida circuit_court granted the relief sought in the petition for modification of the van boven divorce decree that the former wife’s estate had filed in that court after she died id the former husband appealed id the florida district_court of appeals framed the issue presented to it on appeal in van boven as follows whether a court of equity may modify the alimony provisions in a final divorce decree subsequent to the death of the former wife id the florida district_court of appeals addressed the propriety of the florida circuit court’s determination that the van boven settlement agreement provided for the payment of a lump sum of money in lieu of all claims of alimony id pincite after examining that agreement which is similar in all material respects to the mediation agreement involved in the instant case the florida district_court of appeals concluded that the van boven settlement agreement when viewed in its proper prospective sic could not be for anything other than lump sum alimony id the florida district_court of appeals observed that if the florida circuit_court had approved the van boven settlement agreement and had entered a judgment modifying the van boven divorce decree by incorporating that agreement into that decree before the former wife had died the florida district_court of appeals would have had no difficulty in concluding that the modification of the final decree by the florida circuit_court fixed appellant’s former husband’s obligation for the entire lump sum as of the time of the modification even though the former wife’s death should occur thereafter id pincite however because the former wife had died before the florida circuit_court had modified the van boven divorce decree by incorporating the van boven settlement agreement into that decree the florida district_court of appeals held that the florida circuit_court did not have jurisdiction to modify the periodic alimony provisions in the van boven divorce decree after the death of the former wife id nonetheless the florida district_court of appeals observed several times in van boven that under florida law governing contracts florida contract law the executor of the former wife’s estate might have rights under the van boven settlement agreement moreover in dismissing the petition for modification of the van boven divorce decree that the executor of the former wife’s estate had filed the florida district_court of appeals did so without prejudice to any rights which appellee executor of the former wife’s estate may have under either of the written contracts ie the van boven separation agreement and the van boven settlement agreement between appellant former husband and his former wife van boven so 2d pincite under florida contract law when one of the parties to a contract dies that party’s rights and obligations under the contract generally survive that party’s death and become binding on and enforceable by the personal representative of that party’s estate see eg frissell v nichols so fla hiers v thomas so 2d fla dist ct app the court concludes that under florida contract law mr nye’s obligation under the mediation agreement to make the dollar_figure payment to alice c nye the florida district_court of appeals stated several times that it was not addressing the issue of the contractual liability of the former husband under the van boven settlement agreement see van boven so 2d pincite n would not have terminated if she or he had died after date the effective date of that agreement and before the santa rosa circuit_court had decided what if any_action to take with respect to alice c nye’s petition for modification of dissolution judgment pending in that court the court further concludes that the payment at issue does not satisfy the requirement in sec_71 the court holds that petitioners are not entitled to deduct the payment at issue as alimony under sec_215 the court has considered all of the contentions and arguments of the parties that are not discussed herein and we find them to be without merit irrelevant and or mootdollar_figure the court shall address respondent’s argument in respondent’s motion that petitioners are deemed to have conceded respondent’s determination in the notice that they are liable for their taxable_year for the accuracy-related_penalty under sec_6662 in support of that argument respondent relies on rule b and caselaw thereunder and points out that petitioners alleged in the petition that t he only issue is the deductibility of the dollar_figure payment as alimony petitioners counter in petitioners’ response that m ere failure of the taxpayer to include in his assignments of error the commissioner’s penalty determinations did not foreclose the taxpayer from contesting them the authority on which petitioners rely to support that proposition is 235_f2d_112 5th cir rev’g tcmemo_1955_220 birdwell is materially distinguishable from the instant case and petitioners’ reliance on birdwell is misplaced this court has consistently applied rule b and has held that pursuant to that rule a taxpayer is deemed to have conceded a determination of the commissioner of internal revenue with respect to which the taxpayer has not alleged error in the petition see eg funk v continued to reflect the foregoing an order granting respondent’s motion as supplemented and decision for respondent will be entered continued commissioner 123_tc_213 the court concludes that petitioners are deemed to have conceded the accuracy-related_penalty under sec_6662 that respondent determined to impose on them assuming arguendo that the court had not concluded that petitioners are deemed to have conceded respondent’s determination to impose the accuracy- related penalty on them the only argument that petitioners advance in their response to respondent’s motion as to why they are not liable for that penalty is that based on the facts it is petitioners’ position that the proposed deficiency determination is incorrect and therefore there is no basis for a proposed assessment of a negligence_penalty the court has sustained respondent’s determination to disallow the payment at issue as an alimony deduction and petitioners have not suggested that there is any other reason the court should not sustain the determination under sec_6662 assuming arguendo that the court had not concluded that petitioners are deemed to have conceded respondent’s determination to impose the accuracy-related_penalty on them the court would conclude that petitioners are liable for their taxable_year for that penalty


t c memo united_states tax_court whistleblower 22231-12w petitioner v commissioner of internal revenue respondent docket no 22231-12w filed date robert f katzberg for petitioner charles j butler for respondent memorandum findings_of_fact and opinion lauber judge this whistleblower award case is before the court on a motion by the internal_revenue_service irs or respondent to dismiss for lack of jurisdiction petitioner received several emails from the irs whistleblower office office that petitioner asserts constitute a determination regarding one of his claims the issue we must decide is whether the irs made a determination regarding an award within the meaning of sec_7623 sufficient to confer jurisdiction on this court findings_of_fact these findings_of_fact are based on the parties’ pleadings a stipulation of facts with accompanying exhibits and an evidentiary hearing at the hearing the court received testimony from stephen whitlock director of the office he test- ified about the office’s procedures for processing claims generally and about its handling of the particular claim at issue here we found his testimony instructive and credible in all respects petitioner filed form_211 application_for award for original information with the office in date on the application petitioner asserted that he was cooperating with the department of justice and the irs criminal investiga- the court granted petitioner’s motion to proceed anonymously in this case in an effort to preserve petitioner’s anonymity the parties in their briefs and other filings refer to the u s taxpayer who is the subject of the relevant whistleblower claim as taxpayer we will employ the same convention in this opinion when referring to taxpayer and to petitioner we will employ the masculine pro- noun and possessive adjective without intending to create any implication con- cerning the gender of either person all statutory references are to the internal_revenue_code in effect at the relevant times all dollar amounts are rounded to the nearest dollar tion division in connection with the ongoing investigation of two swiss bankers petitioner alleged that his cooperation with those agencies had led to and would lead to more information about these bankers’ involvement in tax_evasion by u s persons having undeclared offshore financial accounts on date the office notified petitioner that it had received the form_211 and assigned unique claim numbers to his claims regarding the two swiss bankers the office advised petitioner that if it initiated an investigation as a result of the information final resolution of his claims could take several years no award could be paid until the irs had collected any taxes or other_amounts assessed by virtue of the information petitioner had supplied subsequent communications letters emails and phone calls ensued be- tween cindy stuart the office analyst assigned to petitioner’s claims and peti- tioner’s counsel petitioner’s counsel tried to convince ms stuart and the office that petitioner’s cooperation was the linchpin in the prosecution of the two swiss bankers which allegedly led to the government’s receiving incriminating infor- mation about numerous u s taxpayers the office subsequently informed petitioner that the claim number assignment is strictly for control purposes and no inference should be drawn of the applicability of any award payment on date petitioner filed with the office a third claim for an award which is the subject of the present controversy petitioner filed this claim after learning that taxpayer had agreed to pay a substantial penalty in conjunc- tion with a guilty plea for filing a false tax_return taxpayer admitted that one of the swiss bankers had helped him open swiss bank accounts to conceal his in- come and assets from u s authorities by the guilty plea taxpayer agreed to pay a multimillion-dollar civil penalty for failing to file form td f re- port of foreign bank and financial accounts fbar see u s c sec a taxpayer also agreed to pay the irs a relatively small amount of restitution reflecting unpaid federal_income_tax due on income earned from the swiss bank accounts petitioner claimed entitlement to an award based upon the aggregate amount_paid by taxpayer given petitioner’s alleged involvement in the swiss banker’s arrest which led to taxpayer 1’s arrest on date the office assigned this claim a unique claim number ending in taxpayer claim on date petitioner’s counsel sent ms stuart a detailed memo- randum outlining petitioner’s asserted connection with taxpayer and urging that an award for the taxpayer claim be finalized without delay on january ms stuart mailed petitioner’s counsel a letter confirming receipt of the january letter she informed him that t he claim for award under sec_7623 is still open and under active consideration and that a number of actions must be completed before a determination is made petitioner’s counsel sent ms stuart a number of follow-up letters between february and date in her replies ms stuart stated that the office had not yet received the information necessary to make a determination that the taxpayer claim was not yet ready for decision and that sec_6103 prevented her from discussing certain matters with petitioner’s counsel in an email dated date ms stuart closed her message by stating as for your inquiry regarding the taxpayer claim i believe you spoke to an office employee about your concerns i have included the service’s position on this topic if you still have concerns you can contact me one concern petitioner’s counsel had expressed was whether fbar pay- ments would be includable in collected_proceeds including penalties interest additions to tax and additional_amounts that form the basis for an award under sec_7623 aware of this concern ms stuart attached to her email a memorandum prepared for stephen whitlock by mark s kaizen associate chief_counsel_irs general legal services dated date this memorandum articulates the legal foundation for the office’s position that fbar payments because they are made pursuant to title rather than title_26 of the u s code are not collected_proceeds within the meaning of sec_7623 the office received this advice after it had sought guidance on the matter ms stuart attached this document to her email as a courtesy to petitioner petitioner’s counsel responded to ms stuart by email the next day as fol- lows please confirm our reading of your email below that based on the service’s position expressed in the date memo you attached your office has now officially denied the taxpayer claim at that time the office had not determined whether the taxpayer claim merited an award because it had not yet learned from the operating side of the irs whether or how petitioner’s information was used if at all with respect to taxpayer ms stuart accordingly responded to petitioner’s counsel by email the next day date as follows the taxpayer claim remains open when the whistleblower office has made a determination related to the claims for award filed by petitioner you will be issued official written correspondence at this point we have not made a determination regarding any of the related claims the service’s position expressed in the date memo that i provided you was simply to let you know that at the point a determination can be made proceeds collected under title and or title would not be considered as part of the claim because the bulk of the proceeds collected from taxpayer consisted of fbar payments for violation of title petitioner decided that there was nothing meaningful left for the office to investigate with respect to this claim petitioner thus viewed ms stuart’s emails as a de_facto determination that the taxpayer claim had been denied on date petitioner filed a petition in this court to challenge that supposed determination on date respondent filed a motion to dismiss this case for lack of jurisdiction this motion contends that the irs had not yet made a determination regarding an award sufficient to confer jurisdiction on this court and that in any event petitioner’s claim relates to title and falls outside the scope of sec_7623 during july or date the office received information from the irs criminal_investigation_division and the irs large_business_and_international_division that the government had not used petitioner’s information as a basis for taking action against taxpayer the office thereafter issued to petitioner on date a letter that both parties agree constitutes a determination that petitioner’s taxpayer claim has been denied petitioner filed a petition from that determination and the matter is currently pending before the court see whistleblower 22716-13w v commissioner dkt no 22716-13w petitioner nevertheless opposes respondent’s motion to dismiss the instant case for lack of jurisdiction we agree with the parties that despite the filing of the second petition the instant case is not moot but continues to present a justiciable case or controversy thus we may decide whether to dismiss the instant case for lack of jurisdiction opinion this court always has jurisdiction to determine whether it has jurisdiction 135_tc_70 the tax_court is a court of limited jurisdiction and we must ascertain whether the case before us is one that congress has authorized us to consider see sec_7442 81_tc_879 we may not enlarge upon the statutory grant of our authority see 66_tc_61 in this case we must decide whether communications between petitioner’s counsel and ms stuart establish that the irs had made as of date a determina- tion regarding an award within the meaning of sec_7623 sufficient to confer jurisdiction on this court i statutory framework the irs has long had authority to pay awards to persons now called whistleblowers who provide information leading to the recovery_of unpaid taxes see sec_7623 the payment of such awards was solely discre- tionary for many years in response to concerns about the management of the discretionary award regime congress enacted legislation in to address perceived problems with the whistleblower program tax relief and health care act of pub_l_no div a sec_406 sec_120 stat pincite effective date the legislation added to sec_7623 a new subsection b which requires the payment of nondiscretionary whistleblower awards in specified circumstances and provides this court jurisdiction to review irs determinations regarding such awards see cooper t c pincite a claimant who does not meet the sec_7623 requirements for a nondiscretionary award remains eli- gible for an award at the irs’ discretion under sec_7623 sec_7623 requires payment of an award if the irs proceeds with an administrative or judicial action to collect taxes based on information brought to the secretary’s attention by an individual the award amount must be at least and not more than of the collected_proceeds including penalties inter- est additions to tax and additional_amounts resulting from the action or settle- ment thereof ibid the determination of the amount shall depend upon the extent to which the individual substantially contributed to such action ibid the irs may determine a lower percentage award if the whistleblower makes a less substantial contribution to the recovery or if the whistleblower planned and initiated the activities leading to the underpayment_of_tax sec_7623 and the irs is directed to deny an award altogether if the whistle- continued sec_7623 defines the universe of claims that are subject_to the nondiscretionary award program established in subsection b the irs must pay claims on a nondiscretionary basis only with respect to actions against a taxpayer whose gross_income exceeds dollar_figure for any taxable_year subject_to such action and only if the tax penalties interest additions to tax and additional_amounts in dispute exceed dollar_figure sec_7623 and b sec_7623 captioned appeal of award_determination governs our jurisdiction over whistleblower claims it provides any determination re- garding an award under paragraph or may within days of such determination be appealed to the tax_court and the tax_court shall have juris- diction with respect to such matter by referring to determinations under para- graph or sec_7623 makes clear that we have jurisdiction to review only determinations concerning nondiscretionary awards authorized by subsection b ii analysis as jurisdictional provisions go sec_7623 is rather unusual unlike most other sections of the internal_revenue_code that confer jurisdiction on this continued blower is convicted criminally for planning and initiating such activities sec_7623 court sec_7623 does not prescribe any particular form of notice to the would-be petitioner indeed it does not literally require that the irs provide that person with written notice of any kind but simply that it make a determination the statute’s failure to specify an unambiguous ticket to the tax_court has created serious interpretative and practical problems both for whistleblowers and for the court we addressed certain of these problems in cooper v commissioner t c pincite we there held that we have jurisdiction to review not only an irs determination concerning the amount of an award but also any determination to deny an award in ascertaining whether the irs has made a determination to deny an award we held that the labeling of an irs communication is not dispositive and does not control whether the document constitutes a deter- mination ibid we found that the letter issued in cooper while not labeled a determination states respondent’s final conclusion that petitioner is not entitled to an award and provides an explanation for this conclusion id pincite because the letter constituted a final administrative decision regarding petitioner’s whistleblower claims in accordance with the established procedures we held that it constituted a determination regarding an award within the meaning of section b and that we accordingly had jurisdiction to review it t c pincite under these standards it seems clear that the email exchanges between ms stuart and petitioner’s counsel do not establish that the office had made as of date a determination to deny the taxpayer claim to the con- trary ms stuart’s email of that date stated that the taxpayer claim remains open and that petitioner would be issued official written correspondence once the office did make a determination regarding this claim as of date the office was still waiting to hear from the relevant irs operating divisions whe- ther the information petitioner supplied had led to the action against taxpayer this is an essential element that must be satisfied before the irs can make a non- discretionary award_determination under sec_7623 since the office was still investigating this issue it had not yet made a final administrative decision consistently with our opinion in cooper t c pincite we have held that the labeling of an irs communication is not dispositive in ascertaining whether it has made a determination sufficient to afford us jurisdiction under other code provisions see eg secc v commissioner t c __ __ slip op pincite date irs letter was a determination concerning worker classification for purposes of sec_7436 corbalis v commissioner t c __ __ slip op pincite date irs letter was a determination concerning interest abatement for purposes of sec_6404 regarding petitioner’s whistleblower claim in accordance with the estab- lished procedures see cooper t c pincite in urging a contrary conclusion petitioner relies on what he regards as the plain meaning of the word any see sec_7623 according to petitioner congress chose not to limit this broadest of jurisdictional delegations with modi- fiers on the word ‘any’ such as ‘dispositive’ or ‘material ’ petitioner contends that we should not read into the statute any limiting language and that ‘any de- termination regarding an award’ means just that we are not persuaded in her date email ms stuart informed petitioner’s counsel that the office had received legal advice that fbar payments cannot be included in collected_proceeds for purposes of making awards under sec_7623 she accordingly advised him that at the point a determination can be made proceeds collected under title would not be considered as part of the claim as we held in cooper t c pincite a determination regarding an award means a determination as to the amount of an award or a determina- tion to deny an award congress cannot possibly have intended that this phrase would embrace every subsidiary finding of fact or conclusion of law that enters into the office’s ultimate decision as to whether an award is appropriate and if so the amount thereof even if the office’s policy decision concerning fbar payments consid- ered in isolation does not constitute a determination regarding an award peti- tioner insists that it constitutes a de_facto determination on the particular facts of this case that is so petitioner contends because more than of the aggregate recovery from taxpayer consisted of fbar payments according to petitioner this demonstrates that the office had nothing left to investigate regarding this claim once it concluded that the fbar component could not qualify contrary to petitioner’s assertion there was something left for the office to investigate--namely whether the action against taxpayer was based on inform- ation brought to the secretary’s attention by petitioner and if so whether the information petitioner provided had substantially contributed to that recovery see sec_7623 sec_7623 gives us jurisdiction to review any deter- mination regarding an award under paragraph or the irs cannot make a determination under paragraph until it has completed its review of all elements specified in that paragraph the office did not receive from the irs operating divisions until july or date the information necessary to ascer- tain whether the action against taxpayer was based on information brought to the secretary’s attention by petitioner or whether petitioner’s information sub stantially contributed to that recovery only then was the office in a posi- tion to make a conclusive determination regarding the taxpayer claim this holding is supported not only by the statute’s language but also by sound principles of judicial policy it is the policy of this court to try all the issues raised in a case in one proceeding to avoid piecemeal and protracted litiga- tion haft trust v commissioner 62_tc_145 the goal of this policy is to avoid the inefficiency and duplication of effort with its attendant delay and waste of time that piecemeal litigation inevitably entails see 91_tc_74 as the facts of this case show our assumption of jurisdiction before the office has concluded its entire investigation would necessarily lead to piecemeal litigation when petitioner filed his petition in our court the office had not yet ascer- tained whether his information had led to action against taxpayer suppose that we had taken jurisdiction of this case and decided the question petitioner poses-- whether fbar payments constitute additional_amounts within the meaning of sec_7623 and b and are thus properly includable in the basis for a nondiscretionary award we now know that the office concluded after petitioner filed the instant petition that his information did not lead to the recovery from taxpayer so that he would not be entitled to an award regardless of whether fbar payments constitute additional_amounts if that conclusion is correct the fbar question would then be moot and our opinion addressing this issue would be an advisory opinion this demonstrates the practical importance of allowing the office to conclude all aspects of its investigation and render a final administrative decision in accordance with the established procedures cooper t c pincite before we undertake review of an award_determination accepting petitioner’s interpretation of sec_7623 would produce absurd or futile results and a well-established rule_of statutory construction is to avoid such outcomes see 102_tc_380 citing 310_us_534 under- taking premature review of whistleblower claims would inevitably lead to piece- meal litigation and prevent us from trying all issues in one case both the plain language of the statute and principles of judicial policy thus support the conclu- sion that the instant petition is premature and that we lack jurisdiction over it iii foreign bank account reporting in the alternative respondent contends that this court lacks jurisdiction because payments under title are outside the scope of sec_7623 and are therefore outside the scope of our jurisdiction under sec_7623 petitioner agrees that this issue is jurisdictional and urges that the court resolve it because we have concluded that the office did not make a determination within the meaning of sec_7623 sufficient to confer jurisdiction on this court we need not decide whether fbar payments are additional_amounts for purposes of ascertaining whether the monetary threshold in sec_7623 has been met or whether that question is a jurisdictional one see friedland v com- missioner tcmemo_2011_217 102_tcm_247 not addressing the monetary threshold question when granting respondent’s motion to dismiss for lack of jurisdiction to reflect the foregoing an order of dismissal for lack of jurisdiction will be entered


t c memo united_states tax_court mary lou and allen e jones petitioners v commissioner of internal revenue respondent docket no 3965-02l filed date on date r mailed to ps separate identical notices of determination concerning collection action s under sec_6320 and or i r c in addition to the date date stamped next to the word date each notice was stamped feb in the immediate proximity of the words in re due process appeal tax_court more than days after the date mailing date of the notices ps filed a petition with the tax_court seeking judicial review of the determination r moved to dismiss the petition for lack of jurisdiction on the ground that the petition was not filed within the day period prescribed in sec_6330 a i r c held because ps failed to file their petition within days of the notices of adverse determination the petition is dismissed for lack of jurisdiction -- - allen eb jones for petitioners a gary begun for respondent memorandum findings_of_fact and opinion halpern judge this case is before the court on respondent’s motion to dismiss for lack of jurisdiction the motion petitioners object respondent’s grounds are that the petition was not filed within the time prescribed by sec_6330 a an evidentiary hearing was held in detroit michigan on date at which testimony was taken and other evidence was received on the basis of the evidence and for the reasons that follow we shall grant the motion unless otherwise indicated all section references are to the internal_revenue_code presently in effect and all rule references are to the tax_court rules_of_practice and procedure findings_of_fact at the time the petition was filed petitioners husband and wife resided in deckerville michigan on date the internal_revenue_service appeals_office in detroit michigan mailed to each petitioner a notice_of_determination concerning collection action s under sec_6320 and or which notices the notices are identical except for name and salutation the notices concern petitioners’ unpaid joint federal_income_tax liabilities for and the notices were sent to petitioners by certified mail and petitioner wife signed for each on date bach notice was date stamped dec in the upper left hand corner next to the word date vertically listed in the upper right hand corner of each notice were various items of information including information regarding the person to contact at the internal_revenue_service and a telephone number to call the last item was the subject matter of the notice in re due process appeal tax_court each notice bore a second date stamp feb immediately under or next to that last information item each notice also contained the following sentence comprising a separate paragraph in the body of the notice if you want to dispute this determination in court you must file a petition with the united_states tax_court for a redetermination within days from the date of this letter bach notice also contained the following language the time limit for filing your petition is fixed by law the courts cannot consider your case if you file late petitioners waited until date to inguire about the significance of the two dates stamped on the notices on that date petitioner husband inquired of appeals officer dianne villa about such significance ms villa informed him that he had only days from the date of the notices to appeal to the tax_court and that the february date was probably an internal - follow up date inadvertently placed on the notices by respondent’s records unit which fact ms villa later confirmed on date the court received and filed a petition dated date in which petitioners seek review of respondent’s determination which they identify in the petition as the notice_of_determination dated opinion i introduction sec_6330 accords taxpayers the right to notice and the opportunity for a hearing before the commissioner can proceed with the collection_of_taxes by way of a levy on property or rights to property sec_6330 the hearing is to be held by the internal_revenue_service appeals_office sec_6330 when the appeals_office issues a determination_letter to the taxpayer following the required hearing sec_6330 provides that the taxpayer ha sec_30 days following the issuance of such determination_letter to file a petition for review with the tax_court or if the tax_court lacks jurisdiction over the underlying tax_liability with a federal district_court fthis court’s jurisdiction under sec_6330 is dependent upon the issuance of a valid determination_letter and the filing of a timely petition for review rule b 114_tc_492 - - there is no question that the petition was not filed within the 30-day period prescribed by sec_6330 for requesting judicial review of an adverse determination made under sec_6330 on that basis respondent asks that we grant the motion petitioners object and they ask us to deny the motion on the basis that they justifiably relied upon the february date clearly marked on respondent’s notice_of_determination in support of their objection petitioners argue that the february date is located in the same general area and format as other letters and notices issued by respondent to illustrate their point they attach to their brief a copy of a notice_of_deficiency where in the upper right hand corner a date appears under the words last date to petition_tax_court ii discussion while we question our authority to lengthen the period fixed by sec_6330 see discussion infra we first address petitioners’ claim that the equities of the situation favor them the notices were mailed and clearly dated date and were received by petitioners on date moreover the notices specifically warned that any petition for a redetermination must be filed within days from the date of this letter and that t he courts cannot consider your case if you file late although on a notice_of_deficiency a second date in addition to the letter date appears under the words -- - last date to petition the tax_court here the second date appeared in close proximity to the words in re due process appeal tax_court a determination_letter triggering a taxpayer’s right to appeal to the tax_court pursuant to sec_6330 unlike a notice_of_deficiency triggering a taxpayer’s right to petition the tax_court to redetermine a deficiency pursuant to sec_6213 need not show the last day on which the taxpayer may file an appeal cf 116_tc_356 affd 293_f3d_740 5th cir although the appearance of the february date may have been confusing to the petitioners we disagree with their characterization of such date as demonstrating that t he notice on its face clearly states that the due process appeal to the tax_court is due_date the notices do no such thing particularly in light of their clear admonition that to be effective the petition must be filed with the tax_court within days from the date of this letter when they received the notices on date petitioners had days in which to either clarify that the day period ran from december or file a protective petition with this court pending later clarification of the due_date instead they waited until january days after the 30-day period had expired to seek clarification under the circumstances the equities of the situation do not favor them - we agree with respondent that petitioners’ allegations that they relied upon the second date stamp of ‘date are self-serving and lack merit when viewed under the totality of circumstances moreover statutory periods are jurisdictional and cannot be extended 115_tc_114 33_tc_868 see also in re 96_f3d_800 6th cir in which the court_of_appeals for the sixth circuit the court to which an appeal from this decision would lie noted that it has been rather consistent in denying ‘equitable’ pleas to disregard the strict timing rules of the tax code and 519_us_347 in which the supreme court refused to permit equitable_tolling of the limitations_period on income_tax refund claims here there is no basis to even consider whether equitable relief might be appropriate the notices were clearly dated date and were received by petitioners on date petitioners could have resolved any confusion that might have been caused by the date date stamp simply by contacting the internal_revenue_service upon their receipt of the notices or during the ensuing 28-day period at the contact telephone number provided on the notices themselves their failure to do so has resulted --- - in an untimely petition and a resulting inability to invoke the jurisdiction of this court under sec_6330 tit conclusion because of petitioners’ failure timely to file a petition we have no jurisdiction to review the notices to reflect the foregoing an appropriate order of dismissal for lack of jurisdiction will be entered


number release date id office uilc cca_2009010908430337 ------------- from -------------------- sent friday january am to ------------------- cc ------------ subject re tefra questions an ira is a_trust see sec_408 and its custodian is a trustee for purposes of federal_law thus it is a person as defined under sec_7701 and a united_states_person under sec_7701 thus an ira may be designated as tax_matters_partner under sec_301_6231_a_7_-1 it would execute its tmp function through its trustee even if the ira was not a united_states_person the restriction under the forgoing regulation applies only if there is a united_states_person who is eligible under your facts there are no non-ira partners so the restriction in question limiting designations to u s persons does not apply in any event i agree that the partnership has probably validly designated the tmp on the partnership return if the person signing the return is a member-manager as defined under sec_301_6231_a_7_-2 or is authorized by one of more member-managers to sign the return pursuant to the llc operating_agreement


internal_revenue_service number release date index number ------------------ ------------------------------- ----------------------------------------- ------------------------------- -------- in re --------------------------------------------------- --------------- department of the treasury washington dc person to contact ------------------------ id no ------------- telephone number --------------------- refer reply to cc corp b04 - plr-119332-04 date july legend ------- ----------------------------- ------------------------------- --------------------------------- ------------------------------------------------------ ------------------------------- ----------------------- parent electing subs -------------------------------------------------------------------------------------------------------------- ------------------------------------------------- ----------------------------- ------------------------------------------- ---------------------------------------------- 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--------------------------------------------------------------------------------------------------------------------- ---------------------------------------------- ------------------------------- ---------------------- --------------------------------- ---------------------------- ---------------------------- ----------------------------------------- -------------------------- ------------------------- ------------------ ----------------------- ----------------------------- -------------------------------- --------------------------------- ------------------------------------ ---------------------------- ---------------------------- ---------------------------------------------------------- ----------------------------- ----------------------------- ------------------------------------------------------------ ------------------------------ -------------------------------------- plr-119332-04 state date year company official ---------------------------------------------------------------------------------------------------------- tax professional dear --------------- dated date requesting an extension of time under sec_301_9100-3 of the procedure and administration regulations to file an election the extension is being requested in order to allow parent and electing subs to file an election to restore value under sec_1_382-8 of the income_tax regulations hereinafter referred to as the election additional information was received in subsequent correspondence dated date and date the material information is summarized below this letter responds to a letter submitted on behalf of parent and electing subs -------------------------------- ------------------------------------------------------ -------------------------------- ----------------------- ------------- ------------------------------------------------------------------------ ------- sec_382 provides that the amount of the taxable_income of any loss parent experienced a sec_382 ownership_change on date parent’s consolidated parent is a state corporation and the common parent of an affiliated_group which plr-119332-04 files a consolidated federal_income_tax return in year the electing subs were component members of parent’s controlled_group within the meaning of sec_1 e and electing subs are all controlled_foreign_corporations as defined in sec_957 and are not engaged in the conduct_of_a_trade_or_business in the united_states and did not file a united_states federal_income_tax return group generated a net_operating_loss nol in year corporation for any post-change_year which may be offset by pre-change losses shall not exceed the sec_382 limitation for such year under sec_382 the sec_382 limitation is determined by multiplying the value of the old_loss_corporation by the applicable long term tax-exempt rate a special rule designed to prevent double counting by controlled groups is set forth in sec_1_382-8 sec_1_382-8 requires the value of the stock of each component_member of the controlled_group be reduced by the value of the stock owned by that component_member in any other component_member component members of a controlled_group can elect under sec_1_382-8 to restore some or all of the value to the member whose value is reduced under sec_1_382-8 the election to restore value is made by following the procedures set forth in sec_1 h the election was required to be filed with parent’s income_tax return for its tax_year ending date however for various reasons parent and electing subs failed to make the election in a timely manner extension of time to make a regulatory election or a statutory election but no more than six months except in the case of a taxpayer who is abroad under all subtitles of the internal_revenue_code except subtitles e g h and i commissioner will use to determine whether to grant an extension of time to make a regulatory election sec_301_9100-1 sec_301_9100-2 provides automatic extensions of time for making certain elections requests for relief under sec_301_9100-3 will be granted when the taxpayer provides evidence to establish that the taxpayer acted reasonably and in good_faith and that granting relief will not prejudice the interests of the government sec_301_9100-3 sec_1_382-8 therefore the commissioner has discretionary authority under sec_301_9100-3 to grant an extension of time for parent and electing subs to file the election provided they show that they acted reasonably and in good_faith the under sec_301_9100-1 the commissioner has discretion to grant a reasonable in this case the time for filing the election is fixed by the regulations ie sec_301_9100-1 through provide the standards the information affidavits and representations submitted by parent company based on the facts and information submitted including the representations the above extension of time is conditioned on the taxpayers’ parent’s and the plr-119332-04 requirements of sec_301_9100-1 and sec_301_9100-3 are satisfied and granting relief will not prejudice the government_official and tax professional explain the circumstances that resulted in the failure to timely file the election the information establishes that parent reasonably relied on a qualified_tax professional who failed to make or advise parent to make the election and that the interests of the government will not be prejudiced if relief is granted see sec_301_9100-3 made we conclude that parent and electing subs have shown that they acted reasonably and in good_faith the requirements of sec_301_9100-1 and sec_301_9100-3 are satisfied and granting relief will not prejudice the interests of the government accordingly an extension of time is granted under sec_301_9100-3 until days from the date on this letter for parent and electing subs to file the election members of its controlled group’s tax_liability if any being not lower in the aggregate for all years to which the election applies than it would have been if the election had been timely made taking into account the time_value_of_money no opinion is expressed as to the taxpayers’ tax_liability for the years involved a determination thereof will be made by the director’s office upon audit of the federal_income_tax returns involved further no opinion is expressed as to the federal_income_tax effect if any if it is determined that the taxpayers’ liability is lower sec_301_9100-3 concerning the tax consequences of any aspect of any transaction or item discussed or referenced in this letter in particular we express no opinion with respect to whether an ownership_change occurred whether parent and electing subs are component members of a controlled_group the amount of value if any that may be restored the value of any corporation or amounts of nols in addition we express no opinion as to the tax effects or consequences of filing the return or the election late under the provisions of any other section of the code or regulations or as to the tax treatment of any conditions existing at the time of or effects resulting from filing the return or the election late that are not specifically set forth in the above ruling statements and representations made by parent company official and tax professional under penalties of perjury however the director should verify all essential facts moreover notwithstanding that the extension is granted under sec_301_9100-3 to file the election any penalties and interest that would otherwise be applicable still apply the code provides that it may not be used or cited as precedent this ruling is directed only to the taxpayers requesting it sec_6110 of except as expressly provided herein no opinion is expressed or implied for purposes of granting relief under sec_301_9100-3 we relied on certain a copy of this letter must be attached to any income_tax return to which it is plr-119332-04 relevant letter are being sent to the taxpayer and a second authorized representative in accordance with the power_of_attorney on file with this office copies of this sincerely _______________________________ ken cohen senior technician reviewer branch office of associate chief_counsel corporate cc ------------------------------------------------------------------ ------------------------------------------------------------------- ------------------------------------------ --------------------------------- --------------------- ------------------------------ ------------------------ --------------------------------- ---------------------------------- ------------------------------------------------------------------------------------------------ ---------------------------------------- --------------------------