Opinion
7208-17W
07-25-2024
JEREMY BERENBLATT, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Elizabeth A. Copeland Judge
On July 9, 2024, Petitioner, Jeremy Berenblatt, filed a Motion for Pretrial Conference, requesting that the Court schedule a telephonic status conference to discuss the possibility of supplemental briefing regarding the impact on this case of the Supreme Court's decision in Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024). In particular, Mr. Berenblatt anticipates supplemental briefing on the following issues:
1. The impact of Loper Bright on this Court's standard of review in whistleblower cases brought under section 7623(b)(4);
2. The impact of Loper Bright on the validity of certain Treasury Regulations interpreting the "proceeds based on" language in section 7623(b)(1);
3. The impact on this case of the Supreme Court's decision, in the wake of Loper Bright, to remand the case Lissack v. Commissioner to the Court of Appeals for the D.C. Circuit, see No. 23-413, 2024 U.S. LEXIS 2937 (U.S. July 2, 2024);
4. The impact of Loper Bright on Respondent's argument in his Motion for Summary Judgment that the Court should apply a presumption of completeness to the administrative record as designated by Respondent; and
5. The impact of Loper Bright on Respondent's argument in his Motion for Summary Judgment that the IRS Whistleblower Office presumptively may rely on the designated administrative record to deny a claim for award under section 7623(b)(1).
Issues 1-3 involve or are at issue in Lissack v. Commissioner. It is therefore premature to order briefing on these issues. If Mr. Berenblatt believes that proceedings in this case should be stayed pending the D.C. Circuit's reconsideration of Lissack v. Commissioner, he may file a motion to that effect. (If he does so, we will offer Respondent an opportunity to file an objection.)
First, some of the issues raised by Mr. Berenblatt will be affected by the Supreme Court's remand in Lissack v. Commissioner, and the D.C. Circuit has not had an opportunity to rule on that remand such that any action in that regard would be premature. (See in particular issues 2 and 3). Further, we struggle to see how Loper Bright affects issues 4 and 5 because when this Court announced a presumption of completeness of the designated record in whistleblower cases, we did not rely on any regulations to reach our holding. See Van Bemmelen v. Commissioner, 155 T.C. 64, 74 (2020). We have a similar struggle in seeing how issue 1 is not dependent on our case law as opposed to reliance on regulations. While Mr. Berenblatt is free to more fully articulate his positions in the motion for summary judgment that he intends to file, ordering additional briefing at this time is premature.
To reflect the foregoing, it is
ORDERED that Petitioner's Motion for Pretrial Conference, filed July 9, 2024, is denied without prejudice to refile at a later date.