Opinion
6983-19W
02-28-2023
ARTHUR M. BIALER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
In addition to status reports (Docs. 124, 128) that we requested (see Doc. 122 at 3), the parties have made additional filings: The Commissioner filed a motion (Doc. 125) to stay proceedings; and petitioner filed a motion to compel (Doc. 127) that we invited (Doc. 122 at 3) and a "Motion to Supplement the Record" (Doc. 126) that we did not invite and that is premature. We will order filings on the motion to stay proceedings and the motion to compel, and we will strike the motion to supplement.
Motion to supplement the record
Our order of January 31, 2022 (Doc. 122 at 2), stated:
In our review of the record, we noted that we did not explicitly rule on "Petitioner's Motion for Leave to File First Supplement to Motion to Supplement the Record" (Doc. 94), i.e., to supplement "Petitioner's "Motion to Supplement the Administrative Record" (Doc. 83). Rather, we implicitly ruled on Doc. 94 when we ruled on Doc. 83. (See Doc. 110 at 7.) However, to make the record clear, we will order that the motion for leave is granted.
That is, we made explicit our previous allowance (in Doc. 110 at 7) of the filing of a supplement (Doc. 94) to a motion to supplement (Doc. 83). And as we noted, the motion to supplement (Doc. 83) had already been ruled on when we issued our order (Doc. 110) ten months ago on April 14, 2022.
Nonetheless, petitioner attempted to take this ministerial act as an occasion to re-argue the already-ruled-on motion to supplement (Doc. 94). As a de facto motion for reconsideration, the motion to supplement is untimely. (Insofar as it anticipates the production of documents in response to petitioner's motion to compel, it is premature.)
Motion to stay proceedings
The Commissioner anticipates rulings by the Court of Appeals for the D.C. Circuit in several whistleblower cases--i.e., Lissack v. Commissioner, No. 21-1268; Villa-Arce v. Commissioner, No. 22-1006; Kennedy v. Commissioner, No. 21-1133; and In re: Sealed Case, No. 21-1197. His motion (Doc. 125, para. 9) states: "The D.C. Circuit's decision on the jurisdictional issues presented in the Cases on Appeal will likely control for purposes of the Tax Court's jurisdiction over this case." But unless we overlook it, the issue in this case that might be controlled by those cases is not stated in the motion. The Commissioner should supplement his motion by stating what he considers to be the jurisdictional defect in this case and by showing that, in one or more of the cases on appeal, that defect has been presented as a basis for a jurisdictional dismissal. After he makes such a showing, petitioner will be able to respond.
It is
ORDERED that petitioner's motion (Doc. 126) to supplement the record is deemed stricken. This action is without prejudice to petitioner's later moving to supplement the record if our upcoming ruling on his motion to compel (Doc. 127) results in the Commissioner's production of documents that should be included in the administrative record. It is further
ORDERED that, no later than March 17, 2023, the Commissioner shall file a response to the motion to compel (Doc. 127) and that, no later than March 31, 2023, petitioner shall file a reply. It is further
ORDERED that, no later than March 17, 2023, the Commissioner shall supplement his motion (Doc. 125) to stay proceedings, to address our comments above; that no later than March 31, 2023, petitioner shall file a response; and that no later than April 14, 2023, the Commissioner shall file a reply.