Opinion
26749-16W
11-09-2023
JOHN DEE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden Special Trial Judge
Pending before the Court in this case is respondent's Motion to Modify Order Dated February 10, 2020, filed March 11, 2020 (motion to modify).
On December 17, 2019, in response to the Court's Order dated November 8, 2019, respondent filed with the Court what respondent asserted was the complete administrative record compiled by the Whistleblower Office (administrative record) in this case. On January 16, 2020, petitioner filed a response as directed by the Court in its November 8, 2019, Order, challenging the correctness and completeness of the administrative record asserting that it omitted important documents and that it contained documents that were partially or fully redated.
By Order dated February 10, 2020, the Court directed respondent to file with the Court an index that identified each document in the administrative record, filed December 17, 2019, including (a) a general description of the document and (b) the corresponding Bates number.
The Court also directed respondent to provide documents to the Court for in camera review that respondent asserted must be redacted to preserve a privilege or protect taxpayer information under section 6103.
Respondent filed the motion to modify the Court's February 10, 2020, Order moving to strike from the Court's February 10, 2020, Order the order that respondent submit his administrative record without redactions for information protected by section 6103 for an in camera review. Petitioner filed a response to the motion to modify, objecting to respondent's motion to modify. Respondent filed a reply to petitioner's response on September 15, 2020. Petitioner filed a sur-reply on October 20, 2020, and a second response to respondent's motion to modify on March 1, 2021.
The Court by Order served July 14, 2022, directed respondent to show cause as to why his motion to modify should not be denied.
Subsequent to that order, and in light of pending cases before the U.S. Court of Appeals for the D.C. Circuit that implicated the Court's jurisdiction in this case, Lissack v. Commissioner, No. 21-1268, and Kennedy v. Commissioner, No. 21-1133, respondent filed on August 16, 2022, a Motion to Stay Proceedings (motion to stay). Petitioner filed a reply on September 8, 2022, objecting to the stay. By Order served September 23, 2022, the Court granted respondent's motion to stay. On May 26, 2023, the U.S. Court of Appeals for the D.C. Circuit issued an opinion in Lissack, 68 F.4th 1312 (D.C. Cir. 2023), and by Order served July 6, 2023, the Court lifted the stay, nunc pro tunc as of June 1, 2023.
Since the filing of respondent's motion to modify the Court has considered the scope of section 6103 opinion in Whistleblower 972-17W v. Commissioner, 159 T.C. No. 1 (July 13, 2022) and the scope of discovery in whistleblower cases as it relates to an assertion that the administrative record is not complete in Berenblatt v. Commissioner, 160 T.C. No. 14 (May 24, 2023). Accordingly the Court, by Order served August 7, 2023, directed the parties to each file a memorandum of law to address respondent's motion to modify in light of these opinions.
Respondent filed a Memorandum of Law on October 6, 2023, and stated that some of the previously partially or fully redacted documents may be released unredacted in accordance with Whistleblower 972-17W. Specifically, respondent agreed that, except for documents that would seriously impair a civil or criminal tax investigation as referenced in the flush language of section 6103(h)(4) or disclose standards for selecting returns for examination pursuant to the flush language of section 6103(b)(2), respondent is permitted to disclose to petitioner the other materials that had previously been partially or fully redacted under a claim of privilege under section 6103.
Respondent asserted that because petitioner has not asked for discovery that the opinion in Berenblatt does not have any application to this case.
Respondent has also correctly noted that after the issuance of the Court's February 10, 2020, order, the Court adopted Rule 93, effective March 20, 2023, which requires parties in a case in which an administrative record is required to file:
with the Court, no later than 45 days after the notice of setting the case for trial is served, the entire administrative record (or so much of the record as either party may deem necessary for a complete disposition of the issue or issues in dispute) stipulated as to its genuineness.
If the parties are unable to stipulate to the administrative record respondent is to file the entire administrative record appropriately certified as to its genuineness. Rule 93 now applies to this case.
Petitioner in his memorandum appears to continue to assert that the previously filed administrative record is incomplete.
Based on the Court's current jurisprudence and Rule 93, the Court will vacate its February 10, 2020, order, strike the previously filed administrative record, and direct the parties to comply with Rule 93. Further, the Court will direct respondent to provide a privilege log identifying all documents that respondent asserts are not disclosable based on a privilege, including nondisclosure under section 6103, specifically section 6103(b)(2) or section 6103(h)(4).
If petitioner continues to assert that the administrative file so ordered is not complete, petitioner may pursuant to this order move to complete or supplement the administrative record. Rule 93(b). If petitioner determines that discovery is necessary petitioner may file requests for interrogatories, pursuant to Rule 71, or request for production of documents, pursuant to Rule 72. If petitioner seeks discovery, he should be cognizant of the application of Berenblatt.
Upon due consideration, it is ORDERED that the Court's Order dated February 10, 2020, is vacated. It is further
ORDERED that respondent's Response to the Order Dated 11/08/2019 and Certificate of Authenticity of Domestic Business Records Pursuant to Federal Rules of Evidence Rule 902(11), both filed December 17, 2019, are stricken from the record. It is further
ORDERED that on or before January 2, 2024, the parties shall comply with Rule 93 and either file a stipulated administrative record or respondent shall file the entire administrative record appropriately certified as to its genuineness. It is further
ORDERED that respondent shall file on or before January 2, 2024, a privilege log that identifies each and every document that respondent asserts is not disclosable based on an identified privilege. It is further
ORDERED that if petitioner asserts that the administrative record filed as ordered is not complete, petitioner may move on or before February 5, 2024, to complete or supplement the record.