According to Law360,
a tax whistleblower said the U.S. Tax Court should hear his untimely petition because the Internal Revenue Service letter declining his claim was vague and failed to tell him he could appeal, according to a brief filed Tuesday with the D.C. Circuit.
David Myers filed a whistleblower claim with the IRS in 2009 and received a denial letter in March 2013. Myers did not file with the Tax Court until January 2015, which dismissed his claim in 2017 for filing outside the 30-day time period set in Internal Revenue Code § 7623(b)(4).
“In this case, given that Myers' whistleblower claim had been pending for years, and given that he had not been provided his statutorily significant document that forms the predicate basis for Tax Court jurisdiction, the Tax Court should have ordered the IRS Whistleblower Office to issue Myers his ‘ticket to Tax Court,’” Myers' attorney, Joseph DiRuzzo, said in the brief.
Myers’ petition was not untimely because the 2013 notice of determination rejecting his whistleblower claim lacked “basic” information on his right to file a petition with the Tax Court, DiRuzzo said. The IRS did not explain why it disallowed the claim or state that he had 30 days to appeal to the Tax Court.
“The IRS Letters Were So Bereft of Information as to Not Qualify as a 'Determination' under Section 7623(b)(4),” DiRuzzo said.
The IRS Whistleblower Office also failed to send Myers a preliminary denial or rejection letter and did not send its denial by certified mail, DiRuzzo said. A certified mailing is necessary to start the 30-day statutory period, he said.
Myers’ case was appropriate for equitable tolling, his attorney said. He filed pro se and only had 30 days to file his petition at the Tax Court, DiRuzzo said in the brief. The court has a majority of pro se litigants and a relatively small number of whistleblower cases, he said.
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