Kasper v. Comm'r

Kasper v. Comm'r

Opinion

 [*38]  HAINES, Judge: This case is before the Court on respondent's motion to dismiss for lack of jurisdiction. The two issues before us are: (1) Whether a letter denying petitioner's whistleblower claim constitutes a "determination" within the meaning of section 7623(b)(4);¹ and (2) if it does, whether petitioner filed a petition with this Court "within 30 days of such determination" to establish subject matter jurisdiction.

Background

Petitioner resided in Arizona at the time he filed his petition.

On January 29, 2009, petitioner filed a Form 211, Application for Award for Original Information (whistleblower claim), with respondent's Whistleblower Office (Whistleblower Office). Petitioner's whistleblower claim provided information alleging that a public corporation and its CEO failed to pay required overtime and failed to withhold employment taxes with respect to that overtime.

The Whistleblower Office bifurcated petitioner's whistleblower claim into a claim for the corporation (the corporate claim) and one for the CEO (the CEO claim) and assigned each a  [*39]  separate claim number.  [**4] On April 10, 2009, the Whistleblower Office sent petitioner a separate letter for each claim which informed him that the claims were being evaluated to determine whether an investigation was warranted and a reward was appropriate.

On June 19, 2009, the Whistleblower Office denied both claims. A denial letter was prepared for each claim. Each denial letter explained that the Whistleblower Office had reviewed and evaluated petitioner's claim and determined that the information he provided did not meet the appropriate criteria for an award. The denial letters also stated that Federal disclosure and other prevailing laws prevented the Whistleblower Office from providing a specific explanation for the denials. Consequently, the denial letters recited a boilerplate list of common reasons for not allowing an award, including: (1) The application provided insufficient information; (2) the information provided did not result in the recovery of taxes, penalties, or fines; or (3) the Internal Revenue Service (IRS) already had the information provided or such information was available in public records.

The only direct evidence of the date when petitioner was notified of the denial of his whistleblower  [**5] claim was a letter sent by the Whistleblower Office in response to an inquiry by petitioner. On May 3, 2010, petitioner notified the Whistleblower Office that the public corporation implicated had made a settlement payment to the IRS. In the May 3 letter, petitioner asked when he could expect notification that the information he provided met the appropriate criteria for an award. Petitioner's letter referenced the claim number assigned to the CEO claim, not to the corporate claim. On May 24, 2010, the Whistleblower Office responded by sending petitioner a copy of the denial letter dated June 19, 2009, for the CEO claim. A copy of the denial letter for the corporate claim was not provided. On June 14, 2010, petitioner filed his petition for a whistleblower action with this Court pursuant to section 7623(b)(4) seeking review of respondent's denial of the whistleblower claim as to the CEO.

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