[00:00:03] Speaker 05: Case number 18-10-03, Nathan T. Myers, Appellate, Commissioner of Internal Revenue Service. [00:00:09] Speaker 05: Mr. DeRoso for the appellate. [00:00:11] Speaker 05: Ms. [00:00:11] Speaker 05: Bradley, the appellate. [00:00:53] Speaker 01: Good morning, and may it please the court, Joseph Drouz, on behalf of the appellant, David Myers. [00:00:58] Speaker 01: I'd like to reserve two minutes for rebuttal. [00:01:00] Speaker 01: Given the limited time I have here today, I'd like to focus my argument on three points. [00:01:04] Speaker 01: First, that this court has jurisdiction to entertain the appeal. [00:01:07] Speaker 01: The second is that the IRS letters are so proactive information to not be a, quote, determination, close quote, as that term is used in 7623B4, which today I want to refer to as B4. [00:01:20] Speaker 01: And third, that B4 [00:01:23] Speaker 01: is not jurisdictional. [00:01:24] Speaker 01: Now, in respect to this court's jurisdiction, the parties agree that Myers-Below filed a timely post-trial motion, but he self-styled as a pro se litigant as a motion to reconsider. [00:01:41] Speaker 01: But regardless of whether a motion to reconsider under tax court rule 161 or tax court rule 162, the parties agree that a filing of a motion under either tax court rule [00:01:53] Speaker 01: resets the proverbial reset button. [00:01:57] Speaker 01: And as a result, when Myers filed his notice of appeal, that notice of appeal was within the 90-day timeframe contained in 7483. [00:02:05] Speaker 01: As a result, this court has jurisdiction. [00:02:09] Speaker 01: However, this court were to disagree with the parties. [00:02:14] Speaker 01: The [00:02:15] Speaker 01: Well, if the court would disagree that Myers did file a rule 161 motion for reconsideration, instead of a 162 motion to vacate, I would submit, and the parties agreed, that the labeling of a prosaic litigants motion does not control. [00:02:32] Speaker 01: One would have to delve into the actual substance of a prosaic litigants motion. [00:02:38] Speaker 01: And the substance of the motion was not a reconsideration to redefine it. [00:02:45] Speaker 04: Title of the motion doesn't matter. [00:02:47] Speaker 04: Why do the rules differentiate between 162 and 161, one of them being tolling and one restarting and one not? [00:03:01] Speaker 01: I don't know, Your Honor, but my initial reaction is that perhaps the framing of 161 and the framing of the language of 162, that the language might be [00:03:17] Speaker 03: In existence, the government supply an answer here that one deals with opinion with the opinion when with the decision. [00:03:25] Speaker 01: Yes, and the decision as the task work term goes is in general where the computations are. [00:03:34] Speaker 03: So in general you have... Usually in a tax case you've got a decision, an opinion on resolving the case, and then a dollar amount to follow. [00:03:42] Speaker 03: Correct. [00:03:43] Speaker 03: This is peculiar because this one doesn't have that second feature. [00:03:47] Speaker 01: What? [00:03:47] Speaker 01: There can't be a dollar amount in a whistleblower case. [00:03:50] Speaker 01: So it is peculiar. [00:03:53] Speaker 03: But we still have an opinion. [00:03:54] Speaker 01: We still do have an opinion. [00:03:56] Speaker 01: So I don't even know if you could, in a whistleblower case, even have a motion to vacate under 162 because there is no decision with a dollar value. [00:04:06] Speaker 01: So I think in a whistleblower case, perhaps the 161, 162 considerations have to merge. [00:04:13] Speaker 01: And I would submit that given that Myers asked for the tax court to effectively wipe out [00:04:22] Speaker 01: you know, totally switch the taxpayers' opinion that it actually had jurisdiction, that [00:04:28] Speaker 01: you could easily argue, and I think it's a fair reading of this motion, that it's actually a better style as a motion of vacate. [00:04:35] Speaker 01: But assuming that this court disagrees with the parties, then this court would have to turn to whether 7483 is jurisdictional, and I would submit that 7483 is not jurisdictional because the jurisdictional grant for this court is contained under 7482. [00:04:48] Speaker 01: But now turning to my second point, the second point is that the- Wait a minute. [00:04:54] Speaker 02: Could you just back up on the question whether if this is not a motion to vacate and therefore it matters whether the deadline is jurisdictional because if it's not the commission has waived and if it is then your client is not timely appealed and what is your argument that it is not jurisdictional? [00:05:19] Speaker 01: Is that the the timeline under 7483 the 90 days [00:05:23] Speaker 01: is separately stated from this court's jurisdiction under 74-82. [00:05:28] Speaker 01: So now turning to- With what consequence? [00:05:37] Speaker 02: I mean, under various decisions of the Supreme Court, most importantly, Bowles, words notice of appeal have jurisdictional consequences. [00:05:48] Speaker 02: And notice of appeal is mentioned [00:05:50] Speaker 02: here. [00:05:53] Speaker 02: Why is that not? [00:05:54] Speaker 01: Well, I think our bulls, that was the beginning of, I would submit, the recent sea change in the Supreme Court case law regarding jurisdictional versus non-jurisdictional. [00:06:03] Speaker 01: The Supreme Court has made clear that where [00:06:06] Speaker 01: the Congress has separated out and has separately stated provision the time frame which 7483 contains versus the granted jurisdiction which is contained under 7482 that at that point you have a presumption [00:06:21] Speaker 01: that the time frame, the 1980 time frame would be a claims processing rule and not a jurisdictional rule. [00:06:28] Speaker 01: Another point I would make is that under the Supreme Court's decision in Hammer, I believe it's Footnote 9, talked about those typical rules for a notice of appeal being jurisdictional in nature, deal with an Article III court appealing to another Article III court as compared to the tax court, which is a statutory Article I court. [00:06:47] Speaker 01: So I would submit that those those considerations that animate the Supreme Court's decision and goals don't come into play here. [00:06:57] Speaker 03: Shinseki follows. [00:07:00] Speaker 03: Shinseki is the most recent case here. [00:07:05] Speaker 03: Shinseki talks about courts without this footnote limitation to Article 3 courts. [00:07:11] Speaker 01: I believe that article 3 discussion was in Hammer at footnote 9, but I believe that the back in second case I believe dealt with, I think it's Raymond Henderson that dealt with the... Probably shouldn't second two dates, man. [00:07:27] Speaker 01: Okay. [00:07:28] Speaker 01: But Henderson dealt with a review from [00:07:32] Speaker 01: the Court of Veterans Appeals or Veterans Affairs, which was also in Article 1. [00:07:36] Speaker 02: Or to Veterans Appeals to the Veterans Court. [00:07:38] Speaker 01: Yes. [00:07:40] Speaker 01: But now as to my second point. [00:07:41] Speaker 03: Which is what? [00:07:42] Speaker 03: Did you say it was an Article 3 court? [00:07:43] Speaker 01: No, which is Article 1. [00:07:44] Speaker 01: Right. [00:07:45] Speaker 03: So in the Shinseki case, there's no distinction between Article 1 and Article 3. [00:07:54] Speaker 03: I believe you're correct. [00:07:54] Speaker 03: It was dealing with an Article 1 court. [00:07:57] Speaker 03: Later, in Hamer, there's a footnote [00:08:01] Speaker 03: that refers to Article 3 courts on both ends. [00:08:04] Speaker 03: I don't feel from it too. [00:08:06] Speaker 03: Yes. [00:08:06] Speaker 03: But it's not an issue in the case. [00:08:08] Speaker 03: They happen both to be Article 3 courts. [00:08:12] Speaker 03: I don't think it disturbs anything in Shinseki. [00:08:18] Speaker 01: Well, I would disagree. [00:08:19] Speaker 01: I would have to fall back onto the general concept that where Congress separates out a deadline, in this case the 90 days, from the jurisdictional grant and separately stated code sections that such as not a clear statement of legislative intent that is jurisdictional falls into the general claims process. [00:08:43] Speaker 02: Can you explain why it would matter whether it's [00:08:46] Speaker 02: to and from an Article III court or to and from an Article I court or from an agency to an Article I court or from an agency to an Article III court? [00:08:55] Speaker 02: Because Congress determines the jurisdiction of all of those entities. [00:09:00] Speaker 01: As a general rule, I would agree with that, but I believe there are certain Article III limitations and that those Article III limitations which are grounded in the Constitution can't be [00:09:10] Speaker 01: can't be tweaked by Congress, whereas Article I considerations from the Tax Court, which is a feature purely of statutory creation, which there is some ongoing argument as to what exactly the Article, the Tax Court is, is it really Article I court, is it Article II? [00:09:25] Speaker 01: These considerations don't come to bear and are separate when you have an Article III court appeal from the District Court to the Court of Appeals. [00:09:36] Speaker 02: Article III considerations that are relevant to this issue? [00:09:38] Speaker 02: I'm not aware. [00:09:39] Speaker 02: I mean, Congress, under Patchak and other recent decisions, has quite broad authority to define Article III court jurisdiction. [00:09:49] Speaker 01: Yes, as a general rule, I would agree with that, but I would have to submit there are limitations within the context of R03 itself. [00:09:59] Speaker 02: I mean, I thought in Bowles, actually, the more powerful driver was the history of over 100 years of treating the timing for a motion, [00:10:11] Speaker 02: notice of appeal as jurisdictional. [00:10:14] Speaker 02: Supreme Court in a half dozen cases, all the circuits, the understanding was really deeply grounded. [00:10:19] Speaker 02: Do we have anything similar to that here? [00:10:22] Speaker 01: I believe so. [00:10:24] Speaker 01: I think, you know, going along those lines where you have tax refund jurisdiction, I want to say under 6511, I think it was at John Gravel, decided the statute of limitations issue on long-standing serious decisive considerations that [00:10:43] Speaker 01: in order to bring a refund suit. [00:10:45] Speaker 01: And those long-standing considerations, especially not present here, given that the whistleblower jurisdiction started in 2006. [00:10:53] Speaker 01: And so, relatively, and constitutionally speaking, it's of recent vintage. [00:10:58] Speaker 02: Is there a general font of tax court jurisdiction over these matters? [00:11:07] Speaker 02: Actually, that's switching to your other issue. [00:11:10] Speaker 02: So on this question of our jurisdiction, I thought that your last answer was actually contrary to your interests. [00:11:18] Speaker 02: The question is, is there a long-standing tradition of treating appeals, notices of appeal from the tax court as the timing of that is jurisdictional rather than as a processing rule? [00:11:32] Speaker 02: And I would think you would have to say, no, there is no. [00:11:34] Speaker 01: Oh, no, there is no, because for example, [00:11:37] Speaker 01: I can think of the code section, I think it's 7433, which I discussed the Hassen case about a wrongful levy. [00:11:44] Speaker 01: So there are certain provisions in the Internal Revenue Code that allow for taxpayer litigation that are not jurisdictional in nature. [00:11:52] Speaker 01: So it's not a one size fits all as to whether everything from the tax court or everything within the Internal Revenue Code is automatically a jurisdictional provision versus the claims processing rule. [00:12:06] Speaker 03: Yes. [00:12:08] Speaker 03: I'll take you back a moment, because I want to make sure that I understand not only what you're saying, but this case, which I find very difficult to keep in focus. [00:12:17] Speaker 03: But when I said that it seemed to me that the Article 1, Article 3 distinction didn't matter, and that under both this would be a jurisdictional requirement. [00:12:35] Speaker 03: it would still be potentially subject to [00:12:41] Speaker 03: to reset or tolling by the motion for reconsideration. [00:12:45] Speaker 03: And you opened, I thought, by saying that's what happened here. [00:12:48] Speaker 01: Oh, absolutely. [00:12:49] Speaker 01: My fallback is only if you disagree with the parties about 161 and 162, with this court, you can have to reach the 74-83 issue. [00:12:57] Speaker 01: But assuming that this court did, that's my honor. [00:13:01] Speaker 01: OK. [00:13:01] Speaker 01: All right. [00:13:04] Speaker 04: I'll give you a couple minutes to reply. [00:13:06] Speaker 01: OK. [00:13:07] Speaker 01: Thank you. [00:13:09] Speaker 04: Ms. [00:13:09] Speaker 04: Bradley? [00:13:12] Speaker 00: Good morning, Your Honors. [00:13:14] Speaker 00: Janet Bradley on behalf of the Commissioner. [00:13:17] Speaker 00: I'll get right to the jurisdictional matter. [00:13:20] Speaker 00: I think part of the confusion comes because when Rule 13 came into existence, the typical thing is the court, the tax court would issue an opinion, there'd be a little bit of time before a decision could be entered. [00:13:36] Speaker 00: So that's where there was a motion to reconsider the opinion. [00:13:40] Speaker 00: And then after that's denied, before the decision is entered, the time does not start to run. [00:13:46] Speaker 00: Here, the time between the opinion and the decision I think was two days between June 5th and June 7th. [00:13:55] Speaker 00: The pro se here did caption his case as a motion to reconsider. [00:14:00] Speaker 00: In the body of the motion, he did refer, however, to ask the court to reconsider the decision. [00:14:07] Speaker 00: So he did that, I believe, in the opening paragraph. [00:14:10] Speaker 00: And in the conclusion, he also referred to the decision. [00:14:16] Speaker 00: Again, here, while labels sometimes matter, because it is a pro se, the courts have treated motions to reconsider as motions to vacate, where again, the timing here is it was timely within 30 days from the date of [00:14:36] Speaker 00: the decision and he asked the court to reconsider the decision and then the time started to run once that action by the tax court was taken denying his post-judgment motion here. [00:14:52] Speaker 00: the explanatory advisory notes to Rule 13, specifically in talking about the tolling and motions to vacate, they refer specifically to this court's decision in a case by the name of Continental Oil. [00:15:09] Speaker 00: It's an old one, but nonetheless, the proposition there that a petition for rehearing [00:15:15] Speaker 00: essentially tolls the time until it's decided. [00:15:18] Speaker 00: So the advisory committee rules cited to that. [00:15:24] Speaker 00: And it also cited to another case of the Eighth Circuit called Robert Stevenson Apartment, where again the same principle was a motion to reconsider would toll the time for appeal to be taken. [00:15:38] Speaker 03: And we... [00:15:40] Speaker 00: uh... note that actually robert stevens was eight thurgood in our any post-decisional motion should not toll I believe that any motion that is timely filed within thirty days of the decision if it's categorized as a motion to reconsider or a motion to vacate [00:16:10] Speaker 00: I think, especially here, liberally construing a pro se. [00:16:15] Speaker 03: Take away the pro se element of this. [00:16:18] Speaker 03: What is the difference between asking a court to reconsider and asking a court to revise? [00:16:23] Speaker 03: Why do we want reconsideration except to revise? [00:16:26] Speaker 00: Well, you know, I think it probably is a matter of semantics because I think in the typical situation, again, the tax court first issues its opinion with its findings of facts, conclusions of law. [00:16:39] Speaker 00: Then typically, here Mr. Myers does a claim and he's not even a taxpayer, they have 30 days to file a motion to reconsider. [00:16:49] Speaker 00: So, you know, a lot of times that 30-day period will come and go. [00:16:52] Speaker 00: There's no motion to reconsider. [00:16:55] Speaker 00: And then once you have that decision, which commences at the time to file a timely appeal, probably any motion that reasonably can be construed to reconsider the decision, which at bottom is reconsidering the opinion, [00:17:11] Speaker 00: I think it would be fair game to be a tolling motion for purposes of the running of the appeal period under 74-83. [00:17:19] Speaker 03: I have a question about... Go ahead. [00:17:22] Speaker 03: There's a long way of saying that any motion filed within the 30 days, regardless of how it's styled, vacate, revise, reconsider, should be treated the same. [00:17:39] Speaker 00: But there could be post-judgment motions which seek other sorts of like injunctions or whatever. [00:17:45] Speaker 03: I don't know. [00:17:47] Speaker 03: If there's no motion to reconsider the opinion and then the decision issues, liability is no longer subject to reconsideration. [00:17:58] Speaker 03: Only the calculation and the decision is. [00:18:00] Speaker 00: Correct. [00:18:02] Speaker 03: Which would mean revising. [00:18:04] Speaker 00: But in the context of a whistleblower, and I would even say in the broader context of tax court jurisdiction, a lot of times the tax court doesn't per se enter a document called opinion. [00:18:17] Speaker 00: The rules provide that they can actually jump over that step and have an order and an order of dismissal sometimes where there are findings that the court lacks jurisdiction. [00:18:30] Speaker 00: So really there wouldn't be any per se [00:18:33] Speaker 00: memorandum but again that order will be construed as a decision. [00:18:37] Speaker 00: So here again it's just a little odd with the timing and the tax court wanted, since this area of law was kind of needing some assistance, spent considerable time having a very thorough [00:18:53] Speaker 00: opinion regarding the area of whistleblower law. [00:18:56] Speaker 00: But again, here, there would be no computation of an amount of decision, or the parties couldn't agree. [00:19:02] Speaker 00: It was either that, at least here, whether the court had jurisdiction or not. [00:19:07] Speaker 03: Remind me, did the tax court opine at all on this distinction? [00:19:12] Speaker 00: No. [00:19:13] Speaker 00: The court subsequently, after briefing was completed about two or three weeks ago, asked for supplemental briefing on the impact of the post-judgment motion. [00:19:26] Speaker 00: The tax court didn't specifically address this in the context. [00:19:30] Speaker 00: The tax court did consider Mr. Myers' post-judgment motion and whether or not that had any merit and subsequently issued an order [00:19:42] Speaker 00: going through his considerations thoroughly and said there was nothing here that would have had cause to reconsider its opinion or its decision. [00:19:52] Speaker 02: And the government's position is that the Supreme Court has said a few times in recent years, including I think most recently in Hamer versus Neighborhood Housing Services, that a statute that's jurisdictional cannot be altered by a rule, a statute [00:20:11] Speaker 02: reigns supreme in the context of jurisdictional timing requirement. [00:20:17] Speaker 02: And the government's position as to why the statutory period can be affected by Rule 13 is that the period's not affected, it's just a setting of when the period, the statutory period begins, am I right about that? [00:20:31] Speaker 02: That the operation of Rule 13 opens the statutory period that the statute says? [00:20:39] Speaker 00: Again, just to back up a step here, the Supreme Court has held, and it's been in the Bowles case and subsequently in the Hammer, that a statutory time period is the best intent that Congress intended for it to be jurisdictional. [00:21:00] Speaker 00: Bull's case what happened was and there was a long history regarding that rule in the interplay of the jurisdictional provision. [00:21:11] Speaker 00: There the rule said that the statute provided that it could be extended for a period of 14 days but the district court for unexplained reasons said 17 days could have been a typo who knows but in any event [00:21:26] Speaker 00: that the motion wasn't filed within the prescribed 14 days. [00:21:30] Speaker 00: So again, the Supreme Court went back to the statute and the time limit that was established there. [00:21:36] Speaker 00: And as Judge Ginsburg pointed out, the government doesn't see that there's any distinction between coming from a lower judicial body [00:21:48] Speaker 00: to a court of appeals, whether it's Article 1 or Article 3. [00:21:52] Speaker 00: And as you pointed out, Judge Ginsburg and Shiseki, there was no difference. [00:21:56] Speaker 00: So we don't see that there's any difference here for jurisdictional purpose coming from the tax court to this court. [00:22:04] Speaker 03: And where are you on tolling? [00:22:07] Speaker 00: On tolling because we take the position that 7483 is jurisdictional. [00:22:12] Speaker 00: And I think the courts of appeals [00:22:14] Speaker 00: Again, I think there is a history here of the courts of appeals considering 7483 to be jurisdictional that it can't be told. [00:22:25] Speaker 00: Again, once the decision on that post-judgment motion was issued, it wasn't the time then started again for the 90-day period so that Mr. Myers did, within that 90-day period, file a timely [00:22:44] Speaker 00: timely appeal. [00:22:45] Speaker 02: Wait, I'm not sure I followed that last answer. [00:22:49] Speaker 02: If 7483 is jurisdictional, then the filing of the notice of appeal is only timely if it is somehow paused or extended by the operation of Rule 13, and your position is that it may be validly so extended. [00:23:08] Speaker 02: Correct. [00:23:08] Speaker 02: But then you said something about not subject to any tolling, and that's where you lost me. [00:23:15] Speaker 02: So you're saying that the filing of the post decision motion stops the time. [00:23:20] Speaker 02: Right, so that is tolling, no? [00:23:22] Speaker 00: Well, I guess it's pausing. [00:23:24] Speaker 00: It's pausing. [00:23:25] Speaker 00: I guess there's been a lot of conversation. [00:23:28] Speaker 03: Thank you for clarifying that. [00:23:30] Speaker 03: So it just, you don't go back to day one. [00:23:33] Speaker 03: No, no, no, you don't. [00:23:34] Speaker 03: So he came in on day 70 on this. [00:23:37] Speaker 00: Right. [00:23:37] Speaker 00: Day 70, I believe, was. [00:23:42] Speaker 02: So you count the pre-motion days and you add them to the post-motion? [00:23:46] Speaker 02: No, no, no. [00:23:47] Speaker 02: After the decision on the motion to vacate or reconsider is issued, then the time to appeal begins as of that date. [00:23:56] Speaker 00: Correct. [00:23:57] Speaker 00: Once that decision on his post-judgment motion was issued, denying it, then Mr. Myers had 90 days from that date to file a timely notice of appeal [00:24:11] Speaker 00: which he did. [00:24:12] Speaker 02: And so I still think, I apologize if we're talking past one another, but I still have the question about the government's position on how to reconcile the language of Bowles and of Hamer that basically says where the statute is jurisdictional, it cannot be altered by rule. [00:24:33] Speaker 02: And you seem to be saying, well, here's a rule, rule 13, that is operating along with the statute, and I'm interested in the grounds for your position that that is not altering the statutory jurisdictional time for the notice of appeal per Bowles and Hamer pay. [00:24:53] Speaker 00: Do my best to clarify this. [00:24:56] Speaker 00: There has been a long history in the tax courts and the courts of appeals [00:25:02] Speaker 00: interpreting Rule 13's provision that a timely, I'm going to say post-judgment motion, tolls the time. [00:25:12] Speaker 00: So again, we have that long history of the courts of appeals and the tax court itself understanding that that tolls the time to appeal. [00:25:25] Speaker 00: I think there's probably a litany of cases out there again where [00:25:30] Speaker 00: there's been some sort of a timely post-judgment motion, it has been decided, and then the time commences again. [00:25:37] Speaker 00: So again, we have this just long history of judicial interpretations of that provision. [00:25:44] Speaker 00: So here, once that motion was denied by the tax court, Mr. Myers then did file a timely decision. [00:25:54] Speaker 02: Why is it not more consistent with precedent to hold that the [00:25:59] Speaker 02: notice of appeal, the timeliness of the notice of appeal here, just as in Henderson, is not, and unlike in Bowles, is just not itself jurisdictional. [00:26:12] Speaker 02: Not itself jurisdictional. [00:26:16] Speaker 00: I think that 7483 is a little different, again, insofar as there's been an extensive judicial history interpreting it to be jurisdictional. [00:26:29] Speaker 00: The courts have interpreted it that way. [00:26:31] Speaker 00: The tax court has interpreted it that way. [00:26:33] Speaker 00: This court has never interpreted it to be jurisdictional. [00:26:41] Speaker 00: In your Edwards versus Commissioner case, which involved your deficiency jurisprudence, I do believe in that case that there was some sort of a timely post [00:26:59] Speaker 00: decision motion that I think did toll the time. [00:27:05] Speaker 02: But didn't characterize the underlying statutory time frame as jurisdictional? [00:27:10] Speaker 00: No, no, I guess it was just assumed to the extent the court went on to decide the merits of that case, correct. [00:27:19] Speaker 00: Just to briefly get to, I see my red lights on, I would just go on to state that the tax court here conducted a thorough determination [00:27:29] Speaker 00: that the letters that Mr. Myers admittedly received were determinations for purposes of 7423B4. [00:27:41] Speaker 00: The tax court also correctly determined since there was not direct evidence of mailing that here where Mr. Myers admittedly received all of the letters that his time commenced [00:27:59] Speaker 00: Once he received that to go ahead and file his petition in the tax court. [00:28:04] Speaker 00: And lastly, I would just state that the government's position is that 7623 B4 is jurisdictional. [00:28:13] Speaker 00: It's the only provision in the Internal Revenue Code governing the tax court jurisdiction with respect to whistleblower. [00:28:23] Speaker 00: And we would ask this court just to affirm the decision below, please. [00:28:28] Speaker 03: If we disagreed with you on that, it would be this question of whether it's subject to equitable toll. [00:28:36] Speaker 00: Well here we maintain that there is no equitable tolling as a factual matter because it's a high bar to come by to prove equitable tolling. [00:28:44] Speaker 03: Well my question is should we resolve that or should the tax court? [00:28:54] Speaker 00: Good question. [00:28:56] Speaker 00: I would say that [00:28:58] Speaker 00: I would say that it's clear here, there's plenty of information in the record to show that Mr. Myers here admitted that he received letters, he didn't do much of anything, and there were no extraordinary circumstances, there was no indication that [00:29:14] Speaker 00: He contacted the whistleblower's office to get information. [00:29:18] Speaker 00: I mean, he really did nothing further. [00:29:20] Speaker 00: So I think here as a matter of law, given the record before it on what Mr. Myers did and did not do, it's explained in our brief that equitable tolling would not, if 7623B was decided by this court not to be jurisdictional, which we maintain it is, that there's no grounds for equitable tolling and that this court could decide that. [00:29:45] Speaker 03: We agreed with you on that. [00:29:47] Speaker 03: Subject 23 is dealing with the tax court's jurisdiction. [00:29:54] Speaker 03: Correct. [00:29:55] Speaker 03: So unlike our own jurisdiction, let me ask you, because it's not about our own jurisdiction, are we worried about Steel Co. [00:30:04] Speaker 03: here? [00:30:08] Speaker 03: I have... Do you think not? [00:30:10] Speaker 00: I don't think so. [00:30:11] Speaker 03: So let's assume not. [00:30:13] Speaker 00: Okay. [00:30:14] Speaker 03: then the question is whether the tax court should make a determination about its own jurisdiction, specifically this presumption issue over whether the presumption's... With respect to 7623B4, I think the tax court did hold that the provision was jurisdictional and that it [00:30:42] Speaker 00: did not have jurisdiction because Mr. Myers did not file it. [00:30:46] Speaker 03: No, but I'm saying if we disagree on that and we go to this question of whether what should be tolling, whether there should be equitable tolling in this case, could we then say, let me go back, could we then say, well, we don't have to answer the question about the tax court's jurisdiction. [00:31:07] Speaker 03: It's not like steel cow. [00:31:09] Speaker 03: We could just look at the question of whether [00:31:13] Speaker 03: Assuming there is equitable tolling, it's been overcome. [00:31:16] Speaker 03: And if the answer is no, as you're suggesting, there shouldn't be none, then we could resolve that without resolving the question of the tax court's jurisdiction. [00:31:27] Speaker 02: Which the tax court itself could not do, or? [00:31:29] Speaker 03: Correct. [00:31:33] Speaker 00: Well, I think the tax court did explain the parameters for it to have jurisdiction, again, [00:31:40] Speaker 00: any determination in a timely petition and held it did not have jurisdiction. [00:31:46] Speaker 00: And then there's the separate issue of whether the tax court also went on hold that 7623B4 is jurisdictional to the extent it has a clear statement. [00:32:00] Speaker 00: of, it uses the word jurisdiction, and that provision is very similar to other jurisdictional provisions. [00:32:08] Speaker 03: I understood, but was there a logical reason why we couldn't say, well, we don't have to decide that on appeal? [00:32:15] Speaker 02: Because there's no extraordinary circumstances that stood in Mr. Meyer's way under Montgomery. [00:32:20] Speaker 00: Right, but then the court would have to have [00:32:22] Speaker 00: In order to get to the equitable tolling issue, I believe the court first has to decide whether or not the statute, 7623B4, is jurisdictional or not. [00:32:31] Speaker 02: Well, that's why we're referring to would we, because we have jurisdiction over the appeal. [00:32:36] Speaker 02: Right. [00:32:36] Speaker 02: So we would not be overstepping our jurisdiction in deciding on the alternative ground, even assuming that the [00:32:44] Speaker 02: statute was jurisdictional and that possibly the tax court lacked jurisdiction, we don't have to get there because we think even if it exercised, even if it did have it or exercised it, there would be no relief for Mr. Meyers. [00:32:59] Speaker 02: And there is a little bit of an oddity there that we could decide an issue that in the first instance the tax court could not decide without first resolving. [00:33:08] Speaker 02: It would have to resolve its jurisdictional question in a way that we would not have to because it's not our jurisdictional question. [00:33:16] Speaker 00: I think that reasonably sums it up. [00:33:22] Speaker 00: I'm just really trying to distinguish the 7623 from the 7483. [00:33:28] Speaker 00: I'm really trying to keep the two of them separate. [00:33:34] Speaker 03: It's difficult, but they are completely separate. [00:33:39] Speaker 00: Well, thank you. [00:33:40] Speaker 00: It is difficult, but they are completely separate, and I think, I hope we try to set that forth in our supplemental briefing. [00:33:49] Speaker 00: And I see my red light's been on. [00:33:50] Speaker 00: If there's not any further questions, we would just. [00:33:55] Speaker 04: Thank you very much. [00:34:00] Speaker 04: Why don't you take two minutes? [00:34:03] Speaker 01: Judge Ginsburg, I think you're right. [00:34:04] Speaker 01: This court can say it has jurisdiction and pass on whether the taxpayer had jurisdiction under B-4 and remand for further consideration of the first sentence by the tax court. [00:34:16] Speaker 01: In the alternative, I believe this court reasonably could affirm and say that based upon the evidence in the record, [00:34:24] Speaker 01: there is no grounds for equitable tolling and not remand. [00:34:28] Speaker 01: I think this Court... Then we could do that without deciding the tax question. [00:34:31] Speaker 01: Without deciding before. [00:34:33] Speaker 02: What is the ground for equitable tolling? [00:34:35] Speaker 02: Menominee sets a high bar and I know that there have been many different different hoops you've had to jump through to get there but it seems like at the end of the day if you don't have that [00:34:46] Speaker 02: all those hoops for not. [00:34:48] Speaker 01: And this actually leads back to my second point. [00:34:51] Speaker 01: If you look at Joint Appendix 126-130, the actual letters, there's certain things that are just not in there. [00:34:59] Speaker 01: No mention of the 30 days, no mention of tax court review, and that it applies that the next step, and I'm quoting here, quote, if you have any further questions in regards to this letter, comma, please feel free to contact the Informant Claims Extension Team at 801 blah, blah, blah, close quote. [00:35:15] Speaker 02: But what requires that a determination say what the appeal rights are? [00:35:21] Speaker 02: I mean, it certainly seems like good governmental practice, but we don't give instructions. [00:35:26] Speaker 02: Typically, courts don't give instructions. [00:35:28] Speaker 01: Thank you that you asked this question. [00:35:30] Speaker 01: This code section has no bounds at all. [00:35:34] Speaker 01: All it says is [00:35:35] Speaker 01: Any determination doesn't say that it has to be written. [00:35:39] Speaker 01: It doesn't say that it has to be a letter. [00:35:41] Speaker 01: I would submit that one could reasonably argue that a postcard from the IRS to a taxpayer would be sufficient. [00:35:49] Speaker 01: One could say that an email would be sufficient. [00:35:52] Speaker 01: One could say that an oral statement, an IRS employee could say, the IRS has determined that you're not entitled to your whistleblower award. [00:36:01] Speaker 01: That would be any determination under B4. [00:36:04] Speaker 01: So I think that, yes, I understand how to conduct this business, but this statute, B4, is so bereft of information that this court is able to interpret what exactly is the constitutional minimum, or maybe the statutory minimum, that will go into a determination. [00:36:22] Speaker 01: And none of that happened here. [00:36:24] Speaker 01: I would submit that, especially if 74B4 is a hard jurisdictional deadline, I submit that it's not. [00:36:30] Speaker 01: But if it is, one would think that, at a minimum, you would need to tell [00:36:34] Speaker 01: the taxpayer, that you've got 30 days to petition the tax court, otherwise you're out of luck. [00:36:40] Speaker 01: And in this sense, that's why these notices were so corrupt information, really not to put Mr. Myers on notice that he needs to go to the tax court within 30 days, otherwise his case will be forever barred. [00:36:55] Speaker 02: Well it seems to me that the very sort of informality that you refer to in the whistleblower program actually supports your reading of 7623b in the sense that there's no question whether there's a right involved at all and whether the tax court has jurisdiction over any denial of it and therefore when you read the parenthetical and the tax court shall have jurisdiction with respect to such matter. [00:37:20] Speaker 02: It's at least reasonably understood that the such matter refers to a determination regarding an award under one, two or three, under paragraph one, two or three and not [00:37:29] Speaker 02: really attentive to the 30-day qualification. [00:37:33] Speaker 01: I would agree, and I would submit between, I think I can reasonably argue, along with Amicus, that the parenthetical is subject to reasonable interpretations that reasonable people could differ. [00:37:43] Speaker 01: And I think that alone is there is reasonable people could differ. [00:37:46] Speaker 01: That's not a clear statement by Congress. [00:37:48] Speaker 01: That's a hard jurisdictional deadline. [00:37:50] Speaker 02: Especially 30 days. [00:37:51] Speaker 02: 30 days is so quick. [00:37:52] Speaker 02: So, but going back to your [00:37:55] Speaker 02: tolling argument on the facts, what is the obstacle that stood in Mr. Meyer's way? [00:38:01] Speaker 01: From petitioning the task force, I would submit not letting him know the day of 30 days, not letting him know that tax review was even possible, and then intimating at best, or explicitly stating at worst, that the next step if there's any type of dispute was for him to call the IRS claims examination team. [00:38:19] Speaker 02: Well, all he would have to do is read 7623B, and I know that [00:38:24] Speaker 02: People typically don't sit around reading the tax code, but you're somebody on his own seeking to pursue a claim. [00:38:30] Speaker 02: And again, we typically assume the public, however fictionally, we typically assume that the public does know the law. [00:38:42] Speaker 01: I think you're right, and I can't dispute that, but I would think that especially in the context of B4 between the actual code section itself, which I think is less than clear, some IRM provisions that are less than clear, the fact that this is a very nascent area of the law that [00:39:01] Speaker 01: a pro se individual. [00:39:03] Speaker 01: I could submit that a non-tax attorney could easily screw it up, let alone a pro se taxpayer. [00:39:12] Speaker 02: So you're saying that something that's not providing clear direction can be an obstacle that stood in his way. [00:39:18] Speaker 01: Yes, especially when you couple that with the animation that the next stage is to call the IRS examination team. [00:39:26] Speaker 02: But the law doesn't say anything about [00:39:28] Speaker 02: any obligation on the part of the IRS to provide direction, right? [00:39:32] Speaker 01: No, it doesn't. [00:39:33] Speaker 01: It doesn't say what needs to be the determination at all. [00:39:34] Speaker 01: It doesn't even have to say that it has to be written. [00:39:36] Speaker 01: It could be oral, as far as am I reading the statute, or it could be an email. [00:39:40] Speaker 01: And I think that's incredibly problematic. [00:39:44] Speaker 01: So all things considered, I submit that this court both has jurisdiction and that this court should determine in the first instance that the determination letters were still correct information not to be determination letters and in the alternative that D4 is not jurisdictional and I pass the court a reverse format for the proceedings. [00:40:06] Speaker 01: Thank you very much.