Tindall v. United States

In the United States Court of Federal Claims No. 21-2200T Filed: May 31, 2026 * * * * * * * * * * * * * * * * JAMES W. TINDALL, * * Plaintiff, * v. * * UNITED STATES, * Defendant. * * * * * * * * * * * * * * * * * James W. Tindall, pro se, Marietta, GA. Patrick Angulo, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. With him were Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Patricia M. McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Assistant Attorney General, Civil Division. Collin R. Snyder, Attorney, IRS Office of Chief Counsel, Internal Revenue Service, Dallas, TX, of counsel. OPINION HORN, J. The current case brought by plaintiff James W. Tindall, as discussed below, has a history in multiple federal courts. In the case filed in the United States Court of Federal Claims, plaintiff initially alleged that defendant unlawfully withheld a whistleblower award due from the United States Internal Revenue Service (IRS) which he was due in return for information that plaintiff had provided concerning violations of federal Internal Revenue laws and regulations.1 After this court granted the defendant’s original motion to dismiss pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) for lack of subject matter jurisdiction, see Tindall v. United States, No. 21- 2200T, 2022 WL 19730768 (Fed. Cl. Oct. 25, 2022), aff’d in part, vacated in part, No. 2023-1139, 2023 WL 2881312 (Fed Cir. Apr. 11, 2023), plaintiff appealed the decision to the United States Court of Appeals for the Federal Circuit. As discussed further below, the Federal Circuit affirmed in part and vacated in part this court’s decision and remanded 1 The court notes that although Mr. Tindall has filed his case in this court pro se, he, in fact, is a licensed attorney in the State of Georgia. The State Bar of Georgia website reflects that Mr. Tindall was admitted to the Georgia Bar in 1994 and his current status is an “Inactive Member in Good Standing.” https://www.gabar.org/member- directory/?id=9759298432A3CE5A67E4A44A0BDD5C21 (last visited May 31, 2026). the case back to the United States Court of Federal Claims. Plaintiff subsequently received payment from the IRS for the whistleblower award, although plaintiff now alleges that he did not had receive the full compensation due to him. After the case was remanded and plaintiff received payment from the IRS, defendant, again, filed a motion to dismiss plaintiff’s original complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Thereafter, Mr. Tindall filed an amended complaint alleging “two (2) breaches of contract and four (4) constitutional violations” by defendant. The defendant responded by filing a motion to dismiss plaintiff’s amended complaint, again pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). Defendant’s current motion to dismiss plaintiff’s amended complaint has been fully briefed. FINDINGS OF FACT Administrative Proceedings before the IRS Initially, plaintiff James Tindall submitted five IRS Forms 211, “Application for Award for Original Information,” to the IRS in 2004 and 2005 regarding the alleged improper tax practices of several “unrelated federal consolidated return-filing taxpayers.” In 2004 and 2005, plaintiff filed the claims on Form 211 pursuant to 26 U.S.C. § 7623 (2000). The relevant statute, 26 U.S.C. § 7623, read as follows: The Secretary, under regulations prescribed by the Secretary, is authorized to pay such sums as he deems necessary for— (1) detecting underpayments of tax, and (2) detecting and bringing to trial and punishment persons guilty of violating the internal revenue laws or conniving at the same, in cases where such expenses are not otherwise provided for by law. Any amount payable under the preceding sentence shall be paid from the proceeds of amounts (other than interest) collected by reason of the information provided, and any amount so collected shall be available for such payments. 26 U.S.C. § 7623. The “Instructions for Form 211, Application for Award for Original Information,” attached to Form 211, provide: The Whistleblower Office has responsibility for the administration of the whistleblower award program under section 7623 of the Internal Revenue Code. Section 7623 authorizes the payment of awards from the proceeds of amounts the Government collects as a result of the information provided by the whistleblower. A claimant must file a formal claim for award by completing and sending Form 211, Application for Award for Original Information, to be considered for the Whistleblower Program. 2  Plaintiff alleged that after plaintiff submitted the IRS Forms 211, in a January 1, 2006 letter from the IRS to plaintiff, the IRS rejected one of the seven related claims. Subsequently, in February 2006, when plaintiff reached out to inquire about the status of his remaining 26 U.S.C. § 7623(a) related claims, plaintiff alleges the IRS told him that the agency did not have records of these claims. In a letter dated January 5, 2007, plaintiff resubmitted the claim forms, which he alleges also included additional supplemental information. In 2006, 26 U.S.C. § 7623 was amended through the Tax Relief and Health Care Act of 2006, P.L. 109-432, 120 Stat. 2922 (TRHCA). This amendment labeled the previous version as 26 U.S.C. § 7623(a), and, relevant to the above captioned case, TRHCA added 26 U.S.C. § 7623(b) to the statute. The revised statute at 26 U.S.C. § 7623(a)-(b) provided: (a) In general.--The Secretary, under regulations prescribed by the Secretary, is authorized to pay such sums as he deems necessary for-- (1) detecting underpayments of tax, or (2) detecting and bringing to trial and punishment persons guilty of violating the internal revenue laws or conniving at the same, in cases where such expenses are not otherwise provided for by law. Any amount payable under the preceding sentence shall be paid from the proceeds of amounts collected by reason of the information provided, and any amount so collected shall be available for such payments. (b) Awards to whistleblowers.-- (1) In general.--If the Secretary proceeds with any administrative or judicial action described in subsection (a) based on information brought to the Secretary's attention by an individual, such individual shall, subject to paragraph (2), receive as an award at least 15 percent but not more than 30 percent of the proceeds collected as a result of the action (including any related actions) or from any settlement in response to such action (determined without regard to whether such proceeds are available to the Secretary). The determination of the amount of such award by the Whistleblower Office shall depend upon the extent to which the individual substantially contributed to such action. (2) Award in case of less substantial contribution.-- (A) In general.--In the event the action described in paragraph (1) is one which the Whistleblower Office determines to be based principally on disclosures of specific allegations (other than information provided by the individual described in paragraph (1)) resulting from a judicial or 3 administrative hearing, from a governmental report, hearing, audit, or investigation, or from the news media, the Whistleblower Office may award such sums as it considers appropriate, but in no case more than 10 percent of the proceeds collected as a result of the action (including any related actions) or from any settlement in response to such action (determined without regard to whether such proceeds are available to the Secretary), taking into account the significance of the individual's information and the role of such individual and any legal representative of such individual in contributing to such action. (B) Nonapplication of paragraph where individual is original source of information.--Subparagraph (A) shall not apply if the information resulting in the initiation of the action described in paragraph (1) was originally provided by the individual described in paragraph (1). (3) Reduction in or denial of award.--If the Whistleblower Office determines that the claim for an award under paragraph (1) or (2) is brought by an individual who planned and initiated the actions that led to the underpayment of tax or actions described in subsection (a)(2), then the Whistleblower Office may appropriately reduce such award. If such individual is convicted of criminal conduct arising from the role described in the preceding sentence, the Whistleblower Office shall deny any award. (4) Appeal of award determination.--Any determination regarding an award under paragraph (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). (5) Application of this subsection.--This subsection shall apply with respect to any action-- (A) against any taxpayer, but in the case of any individual, only if such individual's gross income exceeds $200,000 for any taxable year subject to such action, and (B) if the proceeds in dispute exceed $2,000,000. (6) Additional rules.-- (A) No contract necessary.--No contract with the Internal Revenue Service is necessary for any individual to receive an award under this subsection. (B) Representation.--Any individual described in paragraph (1) or (2) may be represented by counsel. 4  (C) Submission of information.--No award may be made under this subsection based on information submitted to the Secretary unless such information is submitted under penalty of perjury. 26 U.S.C. § 7623(a)-(b) (2006). As reflected in the amended language, for whistleblower claims that result in judicial or administrative action, 26 U.S.C. § 7623(b) mandates an award of at least 15% and up to 30% of the funds collected as a result of the whistleblower’s information, but for whistleblower claims “of less substantial contribution,” an award is limited to 10% of the collected funds. See 26 U.S.C. § 7623(b); see also Confidential Informant 59-05071 v. United States, 121 Fed. Cl. 36, 40 n.3 (2015) (“In the Tax Relief and Health Care Act of 2006, Congress added a new subsection (b) to § 7623, which created a non-discretionary award reviewable in the U.S. Tax Court, but only where the tax, penalties, interest additions, and additional amounts in dispute exceed $2,000,000. The new non-discretionary award only applies to information provided to the IRS after the date of enactment of the Act. Under the new statutory scheme, rewards for amounts in dispute under $2,000,000 are governed by § 7623(a).” (citations omitted)). In 2015, after 26 U.S.C. § 7623 was amended, plaintiff filed two additional Forms 211, which plaintiff asserts are unrelated to his previous filings. On August 8, 2013, plaintiff submitted a letter to the IRS in which he claims to have “identified three (3) open claims that covered (3) discrete reporting positions across at least two (2) unrelated federal consolidated return-filing taxpayers,” and on July 23, 2015, plaintiff “filed an additional (2) discrete Forms 211, Application for Award, that covered (2) discrete reporting positions for an additional unrelated federal consolidated return-filing taxpayer.” As explained by the United States Tax Court: Between June 13, 2004 and November 1, 2004, petitioner filed four Forms 211 to which the WBO [Whistleblower Office] assigned master claim number 2013-007993 and related claim numbers 2017-011232, 2017-011233, 2018-000744, 2018-000759, 2018-000760, 2018- 000763, and 2018-000765 (collectively, the “Pre-TRHCA Enactment Claims” or “section 7623(a) claims”). Later, on or after July 23, 2015, petitioner filed two additional Forms 211, for an unrelated federal consolidated return-filing taxpayer, to which the WBO assigned claim number 2015-016670 and which the WBO associated with master claim number 2013-007993 (the “Post-TRHCA Enactment Claim” or “section 7623(b) claims”). Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2 (T.C. Dec. 7, 2022), aff’d, No. 23-1056 (D.C. Cir. Oct. 12, 2023) (alteration added). On January 31, 2019, the IRS sent plaintiff a preliminary award decision letter regarding his original Forms 211, informing him of his entitlement to an award of $650,910.34. The January 31, 2019 Preliminary Award Decision Letter referenced plaintiff’s “Claim Number(s): 2013-007993 (master) and 2015-016670, 2017-011232, 2017-011233, 2018-000744, 2018-000759, 2018-000760, 2018-000763, and 2018- 000765 (related).” In the January 31, 2019 Preliminary Award Decision Letter, the agency stated: 5  The Whistleblower Office has reached a preliminary award recommendation under Internal Revenue Code 7623(a) based on your Form 211, Application for Award for Original Information dated 6/13/2004, this includes any additional information you may have provided in relation to the Form 211. Enclosed is a Summary Report that explains our preliminary award recommendation in the amount of $650,910.34. If there are any changes to the recommended award percentage or the amount of collected proceeds as reflected in the Summary Report, then the Whistleblower Office will send you a revised Preliminary Award Recommendation Letter. The January 31, 2019 Preliminary Award Decision Letter also explained that whistleblower awards were subject to certain required deductions, according to statutory requirements, including those in the Budget Control Act of 2011, Pub. L. No. 112-25, 125 Stat. 240, which provides that awards were automatically reduced by a certain percentage determined annually by the Office of Management and Budget. A reduction of this kind is often referred to as a sequestration reduction or a sequestration haircut. According to the letter: The Budget Control Act of 2011, as amended by the American Tax Relief Act of 2012, requires that automatic reductions be made with respect to certain government payments. These required reductions include a reduction to awards paid under Internal Revenue Code section 7623. The required reduction percentage is determined annually by the Office of Management and Budget for the year in which payments are made. As a result, your preliminary recommended award reflects a reduction in accordance with the Office of Management and Budget guidance for the 2019 Fiscal Year reduction amount of 6.2%. The final award amount will use the reduction required in the year of payment. A “Summary Report” attached to the January 31, 2019 Preliminary Award Decision Letter provided the methodology that the IRS had used to arrive at plaintiff’s preliminary award amount based on the original tax amount collected and the applicable statutory reductions: 1. Preliminary tax, penalties, interest and other amounts collected based on information provided by Whistleblower: $ 6,939,342.59 2. Recommended Award Percent: 10% 3. Preliminary Award: Collected proceeds (Line 1) x recommended award percent (Line 2): $ 693,934.26 4. Preliminary Budget Control Act reduction (Line 3 amount x 6.2 percent): $ 43,023.92 6  The Budget Control Act of 2011, as amended by the American Tax Relief Act of 2012, requires that automatic reductions be made with respect to certain government payments. These required reductions include a reduction to awards paid under Internal Revenue Code section 7623. The required reduction percentage is determined annually by the Office of Management and Budget for the year in which payments are made. As a result, your preliminary recommended award reflects a reduction in accordance with Office of Management and Budget guidance for the 2019 Fiscal Year reduction amount of 6.2%. The final award amount will use the reduction required in the year of payment. 5. Preliminary recommended IRC section 7623(a) Award Amount (Line 3 less Line 4): $ 650,910.34 Awards payable under section 7623 are includible in the gross income of the recipient and subject to federal tax reporting and withholding requirements [sic] Generally, whistleblower awards paid to U.S. citizens or resident aliens in excess of $10,000 will be subject to a 24% withholding for federal income tax. Payments to foreign persons will be treated as fixed, determinable, annual, or periodical (FDAP) income and withheld at 30%. In addition, the IRS may offset awards payable under section 7623 against any outstanding Federal income tax liabilities or Treasury Offset Program debts that may be owed by you if our records reflect that you have an outstanding balance. Calculation of the amount due, if applicable, will be made at the time of the award payment. 6. Factors that contributed to the recommended award percentage: The intermediate award percentage of 10% is appropriate and reasonable for this claim for award. This award percentage is prescribed in the Internal Revenue Manual for pre-enactment claim for award cases where the Whistleblower’s information, though it did not start the examination or investigation of the taxpayers, “was of value in the determination of tax liabilities although not specific”. (capitalization and emphasis in original; alteration added). The January 31, 2019 Preliminary Award Decision Letter further explained that “[t]his preliminary award recommendation letter begins the whistleblower award administrative proceeding,” and [i]f you agree with this preliminary award recommendation: 1. Check the appropriate box, sign and date the enclosed Response to Summary Report form indicating your agreement; and 7  2. Return the signed form to us. By checking the box, you agree with the preliminary award recommendation and accept it an an [sic] award decision. If you do not agree with the Whistleblower Office preliminary award recommendation and wish to submit comments: 1. Check the appropriate box, sign and date the enclosed Response to Summary Report form; and 2. Return the signed Response to Summary Report along with any comments to the preliminary award recommendation to the Whistleblower Office within 30 days from the date of this letter. 3. The Whistleblower Office will consider any comments received and send a Final Award Determination Letter. (capitalization in original; alterations added). The boxes described in the January 31, 2019 Preliminary Award Decision Letter invite a recipient to select one of the following two statements: “I agree with the preliminary award recommendation and accept it as an award decision” or “I disagree with the preliminary award recommendation. I understand that if I wish to provide comments regarding the Summary Award Report such comments must be submitted within 30 days of the date of the letter transmitting the Summary Award.” On February 6, 2019, plaintiff sent the IRS a letter objecting to the January 31, 2019 Preliminary Award Decision Letter. Plaintiff’s February 6, 2019 letter stated: I received the Preliminary Award Letter, dated January 31, 2019, which proposes a preliminary net-net award of $650,910.34. I appreciate your ability to quickly process the Preliminary Award Letter following the chaos of the recent federal shutdown. With the issuance of the Preliminary Award Letter, I am optimistic about where we are on the remaining timeline and hope we can resolve our remaining differences quickly to bring this project to a satisfactory conclusion. As requested, I am returning a signed "Response to Summary Report” (page 6 of your letter) declining that preliminary award amount (see enclosed). (capitalization and emphasis in original). Plaintiff described three objections in his February 6, 2019 letter: (1) that it was improper for the agency to apply a reduction to his award under the Budget Control Act 8 of 2011, (2) that the IRS has a continuing obligation to “pay once additional proceeds are collected as the subsequent tax years close,” and (3) that the award percentage should have been higher than 10%. Regarding the Budget Control Act of 2011, plaintiff explained: As some of my previous correspondence has indicated, I am not in agreement with the position of the IRS Whistleblower’s Office that the Budget Control Act of 2011 creates a Sequestration Haircut that applies to Whistleblower Awards. Quite simply, the awards are paid from collected proceeds, which are not rationally part of the US budget, because these collected proceeds are something the US government would not have received but for the involvement of the IRS whistleblower. (capitalization in original). Plaintiff’s February 6, 2019 letter continues: Moreover, and specific to my case, the calculation is determined by the statutes in effect in 2004, which predate the Budget Control Act of 2011. Thus, any attempt to change that calculation impacts my property interest and violates the Taking Clause of the US Constitution (our 5th Amendment provides that “nor shall private property be taken for public use, without just compensation”). (capitalization and emphasis in original). Regarding the continuing obligation to pay, plaintiff stated: [Y]our statement conflicts with [26 C.F.R.] Reg. §301.7623-2(d)(5)(ii), which states “Post-determination proceeds. If, based on all information known with respect to the taxpayer's account as of the date of the computation described in paragraph (d)(5)(i) of this section, there is a possibility that the IRS may collect additional proceeds, then the Whistleblower Office will continue to monitor the case. If the Whistleblower Office identifies additional collected proceeds, then the IRS will compute and pay accordingly”. [26 C.F.R.] Reg. §301-7623-2(d)(5)(i) further states that “the IRS will compute the amount of collected proceeds based on all information known with respect to the taxpayer's account, including with respect to all tax attributes, as of the date the computation is made”. Thus, there is an affirmative continuing obligation to pay once additional proceeds are collected as the subsequent tax years 9  close. Moreover, there is an affirmative obligation to monitor all tax attributes and pay awards from subsequently collected proceeds. (alterations added; emphasis in original). Regarding the award percentage rate, plaintiff wrote: The Preliminary Award Letter, dated January 31, 2019, only provides an award percent of 10% and vaguely refers to the provided information as being “of value . . . although not specific”. I am troubled by that brief statement, because it is inconsistent with the very specific statements and information I provided in my original letter, dated June 13, 2004 (see enclosed). (emphasis and alteration in original). Plaintiff’s February 6, 2019 letter included a section titled “FOR SETTLMENT PURPOSES ONLY,” which stated: Over the last fifteen (15) years, I have had the occasion to complete my own tentative award calculation. In all cases, my estimates have been limited by the $2 million limitation contained in the 2004 statute. Once that limit has been reached, then there is no need to continue to monitor the taxpayers' accounts, because no more award monies can be paid. Given the discrepancies identified above (the inapplicability of 2011 Sequestration Haircut, the impact of reduced net operating loss attributes on subsequent collected proceeds, your affirmative obligation to continue to monitor those collections and pay subsequent awards, and the increased proper award percentage), I propose that your Final Determination Letter reflect the application of the $2 million limitation and limit my award to $2 million, which will bring this project to a mutually satisfactory resolution of all our outstanding issues (see enclosed). (emphasis and capitalization in original). Plaintiff’s February 6, 2019 letter concluded: “Alternatively, our collective failure to reach a mutually satisfactory resolution will require numerous definitional and process oversights to be publicly displayed and judicially resolved (with certainty) – none of which will be resolved in favor of the IRS.” As noted above, plaintiff included a signed copy of the “Response to Summary Report,” checking the box: “I disagree with the preliminary award recommendation” in the February 6, 2019 letter. On March 5, 2019, the IRS sent plaintiff a final award decision letter advising that he was entitled to $650,910.34, the same amount as included in the preliminary award recommendation. The March 5, 2019 Final Award Decision Letter stated: 10  The Whistleblower Office has considered your Form 211, Application for Award for Original Information, dated June 13, 2004, this includes any additional information you may have provided in relation to the Form 211. On January 31, 2019, the Whistleblower Office sent you a preliminary award recommendation. The Whistleblower Office reviewed the comments you provided on the preliminary award recommendation. The Whistleblower Office has made a final decision that you are entitled to an award of $ 650,910.34. (capitalization in original). In the March 5, 2019 Final Award Decision Letter, the IRS attached a “Determination Report” showing the methodology the agency had used to calculate the final award, which was identical to the methodology used in the preliminary award decision letter. The March 5, 2019 final award decision Letter also notified plaintiff that “[t]he Whistleblower Office will process the award for payment as promptly as the circumstances permit” (alteration added). Unlike the preliminary award decision letter, there was not an option for plaintiff to indicate that he agreed or disagreed with the final award. On March 21, 2019, plaintiff sent the IRS a letter objecting to the final award decision. Plaintiff stated in this letter: “I received your ‘Final Award Letter’, dated March 5, 2019, which proposed an award of $650,910.34, which was unchanged from your preliminary offer and failed to appropriately consider the supplemental information I provided in mid-February 2019.” In his March 21, 2019 letter, plaintiff raised similar concerns to those in his letter objecting to the preliminary award recommendation. In his March 21, 2019 letter plaintiff also stated: §7623(b) applies to my Claims for Reward. In my letter, dated February 14, 2019, I reminded you that I filed the Form 211 Claims for Reward for the 2nd party to the blown §1031[2] transaction on July 23, 2015 (I previously forwarded you a copy of those Forms and a copy of your reply, dated July 30, 2015, confirming receipt and assigning claim number 2015-016670). Strangely, your ‘Final Award Letter’ that includes that assigned claim number (2015-016670) only considers the award under §7623(a), which only applies to claims filed before December 19, 2006, which does not apply to the Claims for Reward filed on July 30, 2015. As you are aware, these post-12/19/2006 Claims for Reward fall under the current award regime, which mandate a payout percentage of between 15- 30% and apply a maximum limitation of $10M - well above the limitations under the prior regime. 2 In his March 21, 2019 letter, plaintiff does not explain or elaborate on his allegation of a “blown §1031 transaction.” The statute at 26 U.S.C. § 1031 (2024) is titled: “Exchange of real property held for productive use or investment.” There is no reference to 26 U.S.C. § 1031 in plaintiff’s original complaint or amended complaint and the parties do not address 26 U.S.C. § 1031 in briefing on defendant’s motions to dismiss. 11  In my letter, dated February 14, 2019, I encouraged you to consider this as part of your review for the Final Determination Letter - my request having fallen on deaf ears. Keep in mind, these are two discrete consolidated groups, two separate taxpayers and two longer NOL [net operating loss] rollforward periods that would need to be tracked and monitored. Your ‘Final Award Letter’, dated March 5, 2019, ignores these facts and incorrectly applies the wrong sub-section of §7623 (you apply §7623(a) instead of §7623(b)). Finally, §7623(b) grants me the statutory right to appeal your determination to the US Tax Court. (alteration and footnote added; emphasis and capitalization in original). Plaintiff’s March 21, 2019 letter concluded by advising the agency: These are some of the legal issues that will be resolved judicially if you fail to reconsider them and update your ‘Final Award Letter’, dated March 5, 2019. Do you really want a public court opinion on these issues that will bind you for all whistleblower awards? If I fail to receive a corrected ‘Final Award Letter’ that incorporates these changes by Tuesday, April 2, 2019, then I will have no choice but to allow the US Tax Court to resolve these issues. (emphasis in original). United States Tax Court Proceedings Prior to plaintiff filing his lawsuit in the United States Court of Federal Claims, on April 1, 2019, plaintiff filed a petition in the United States Tax Court, Case No. 5903-19W. In his April 1, 2019 petition in the Tax Court, plaintiff identified the following points of disagreement with the agency’s determination regarding the award to plaintiff: 1. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by mislabeling Petitioner’s §7623(b) claims as §7623(a) claims when Petitioner filed at least two (2) additional claims after December 20, 2006, that are covered by Respondent's Final Award Letter. 2. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by mislabeling Petitioner’s §7623(b) claims as §7623(a) claims when Petitioner provided supplemental information after December 20, 2006, that are covered by Respondent’s Final Award Letter. 12  3. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by applying the statutory scheme under §7623(a) to Petitioner’s §7623(b) claims. 4. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by applying a 10% award rate, which is below the statutory minimum rate required for §7623(b) claims (15% minimum) and well below the maximum rate allowed for §7623(b) claims (30% maximum) that Petitioner is eligible for. 5. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by providing only boilerplate language in its Final Award Letter instead of meaningful explanations, as required by the Chenery doctrine (see SEC v. Chenery Corp. and SEC v. Chenery Corp.). 6. Supporting its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by providing only boilerplate language in its Preliminary Award Recommendation and related Summary Report, dated January 31, 2019, instead of meaningful explanations, as required by the Chenery doctrine (see SEC v. Chenery Corp. and SEC v. Chenery Corp.). 7. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by providing no support, no documentation and no meaningful analysis supporting its determination of the amount of the §7623(b) award amount (as one of several exceptions to the “record rule” outlined in Kasper v. Comm.), including Respondent’s failure to provide any support for its determination of the amount of collected proceeds and Respondent’s failure to provide any explanation for its decision to apply an award percentage of less than the required statutory minimum. 8. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by stating that “there is no possibility the IRS will collect post- decision proceeds” which directly contradicts Respondent’s own guiding regulations, which state: “the IRS will compute the amount of collected proceeds based on all information known with respect to the taxpayer's account, including with respect to all tax attributes, as of the date the computation is made”. 13  Those regulations also state: “Post-determination proceeds. If, based on all information known with respect to the taxpayer's account as of the date of the computation described in paragraph (d)(5)(i) of this section, there is a possibility that the IRS may collect additional proceeds, then the Whistleblower Office will continue to monitor the case. If the Whistleblower Office identifies additional collected proceeds, then the IRS will compute and pay accordingly”. 9. In its Final Award Letter, dated March 5, 2019, Respondent abused its discretion by applying a 6.2% Budget Control Act reduction (“sequestration haircut”) to Petitioner’s §7623(b) award when the controlling statute (§7623) allows for no such reduction. (emphasis in original; footnotes omitted). On December 7, 2022, the United States Tax Court dismissed plaintiff’s case for lack of jurisdiction. By way of background, the Tax Court explained: Between June 13, 2004 and November 1, 2004, petitioner filed four Forms 211 to which the WBO assigned master claim number 2013- 007993 and related claim numbers 2017-011232, 2017-011233, 2018- 000744, 2018-000759, 2018-000760, 2018-000763, and 2018-000765 (collectively, the “Pre-TRHCA Enactment Claims” or “section 7623(a) claims”). Later, on or after July 23, 2015, petitioner filed two additional Forms 211, for an unrelated federal consolidated return-filing taxpayer, to which the WBO assigned claim number 2015-016670 and which the WBO associated with master claim number 2013-007993 (the “Post- TRHCA Enactment Claim” or “section 7623(b) claims”). Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2. As explained by the United States Tax Court: After examination, respondent [the United States] found that of the taxpayers related to petitioner’s various claims, the taxpayers underlying claim numbers 2017-011232 and 2017-011232 [sic] were the only taxable parties. Therefore, respondent recovered proceeds from only these two claims, which are section 7623(a) claims. The records further show that regarding claim number 2015-011670, the only section 7623(b) claim in this case, respondent did not take administrative or judicial action and did not collect any proceeds because 14  the statute of limitations to examine the taxpayer underlying the 2015- 011670 for the years in questions [sic] had expired. Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2 (alterations added). Accordingly, the United States Tax Court granted the government’s motion to dismiss for lack of jurisdiction and explained: The Secretary has long had the discretion to pay awards to persons who provide information that aids in (1) detecting underpayments of tax or (2) detecting and bringing to trial and punishment persons guilty of violating the internal revenue laws. Sec. 7623(a). Congress enacted the Tax Relief and Health Care Act of 2006 (TRHCA), Pub. L. No. 109-432, div. A, sec. 406, 120 Stat. at 2958, to address perceived problems with the discretionary award regime. TRHCA section 406 amended section 7623 to require the Secretary to pay whistleblower awards under certain circumstances. Under section 7623(b)(1) a whistleblower is entitled to a minimum award of 15% of the collected proceeds if the Commissioner proceeds with administrative or judicial action using information provided in a whistleblower claim. Whistle blower [sic] claims filed after TRHCA are subject to this Court’s review. However, when a whistleblower submits a post-TRHCA claim using the same information the whistleblower provided to the WBO pre-THRCA [sic], this Court lacks jurisdiction. Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2 (alterations added).3 When applying the Tax Relief and Health Care Act of 2006 to plaintiff’s claims, the Tax Court continued: “We find that because petitioner’s post-THRCA, [sic] claim number 2015- 011670 provided the WBO the same information petitioner provided to the WBO pre- THRCA [sic] and because the remaining eight claims are pre-THCA [sic], we lack jurisdiction in this case.” Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2-3 (alterations added). The Tax Court further explained that “in Li v. Commissioner, 22 F.4th 1014 (D.C. Cir. Jan. 11, 2022), the Court of Appeals for the District of Columbia Circuit held that the Tax Court lacks jurisdiction of whistleblower cases involving thresho