UNITED STATES TAX COURT

SEC

155 T.C. No. 2

UNITED STATES TAX COURT

WHISTLEBLOWER 21276-13W, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

WHISTLEBLOWER 21277-13W, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 21276-13W, 21277-13W.

Filed August 26, 2020.

Ps' claims for whistleblower awards have been the subject of

two prior Opinions. Whistleblower 21276-13W v. Commissioner,

144 T.C. 290 (2015), supplemented by Whistleblower 21276-13W v.

Commissioner, 147 T.C. 121 (2016).

After the Court issued its first Opinion, Ps and R entered into a

partial settlement that provided for immediate payment with respect

to portions of the awards due to Ps and left for judicial resolution a

single issue on which the parties could not agree. The partial

settlement, which was referred to (but not made part of the record) in

the prior proceedings, provided that any further payment "will be

reduced by the sequester reduction percentage in effect at the time of

payment."

SERVED Aug 26 2020

-2The Court's second Opinion sided with Ps on the remaining

unagreed issue. The Court then entered two decisions (the

"Decisions") setting forth the dollar amounts of Ps' awards calculated

based on inputs stipulated by the parties. The Decisions reflected the

gross amounts of the awards, including the awards that R had paid to

Ps after the issuance of the first Opinion pursuant to the partial

settlement.

R filed an appeal challenging the holding of the second

Opinion, but eventually the appeal was dismissed based on the

parties' joint stipulation for dismissal. Thereafter, R paid the

remaining awards to Ps, but reduced the payments to take into

account the sequester reductions contemplated by the parties' partial

settlement as well as withholding taxes.

More than eight months after the remaining payments were

made and more than seven months after the Decisions became final,

Ps moved the Court to enforce the Decisions and to require R to pay

the amounts set forth in the Decisions without the sequester

reductions.

HeM: The Court had jurisdiction to enter the Decisions

because a remand to the IRS Whistleblower Office for further

proceedings would have been futile as only one disposition was

possible as a matter of law on the issue before the Court.

I]eM, further, as a court of record, the Court has jurisdiction to

enforce the Decisions under longstanding Supreme Court precedent.

HeM, further, Ps are not entitled to the relief they request, and

the motions will be denied because they ignore the terms of the partial

settlement and misinterpret the Decisions.

Dean A. Zerbe, for petitioners.

Richard L. Hatfield, for respondent.

-3OPINION

TORO, Judge: These cases are before us on the whistleblowers' motions

(the "Motions") to enforce our previously entered decisions. Those decisions set

forth the dollar amounts of the awards calculated for Whistleblower 21276-13W

and Whistleblower 21277-13W, pursuant to our August 3, 2016, Opinion.

Whistleblower 21276-13W v. Commissioner, 147 T.C. 121, 140 (2016),

supplementing 144 T.C. 290 (2015). The whistleblowers ask us to require the

Commissioner to pay the amounts set forth in those decisions, rather than smaller

amounts diminished by "sequester reductions." The Commissioner replies that he

has paid in full the awards to which the whistleblowers are entitled: the amounts

specified in the decisions less the sequester reductions to which the parties agreed.

For the reasons that follow, we will deny the Motions.

Background

Our two previous Opinions in these cases describe more fully the relevant

factual and legal background that gave rise to the present dispute, and we will not

repeat that discussion here. Our focus here is on the facts relevant to deciding the

Motions.

-4In our first Opinion, issued in June 2015, we were asked to consider

whether the whistleblowers, who had not approached the Whistleblower Office

until after the Government had collected approximately $74 million from a

targeted business pursuant to a plea agreement, but who asserted that they had

contributed to the Government's recovery, could be eligible for a whistleblower

award. We held that they could be and instructed the Commissioner to consider

the merits of their claims. Whistleblower 21276-13W v. Commissioner, 144 T.C.

at 300, 306. After we issued that Opinion, the Court "issued an order requiring the

parties to attempt to resolve their differences and to keep the Court informed of

their progress." Whistleblower 21276-13W v. Commissioner, 147 T.C. at 122.

Discussions followed, and the parties reached a partial settlement in November

2015. There they agreed that the whistleblowers were eligible for a total award of

24% of collected proceeds, but they could not agree whether certain amounts were

"collected proceeds" for purposes of determining the amount of the award. The

parties also agreed that any award would be reduced by a sequester reduction

percentage.¹

¹TheBudget Control Act of20l l, as amended by the Taxpayer Relief Act

of 2012, provides for the enforcement of Federal budgetary limits through

sequestration of discretionary spending. See 2 U.S.C. secs. 900-907 (2018). We

recently concluded that the sequestration provisions apply to whistleblower

(continued...)

-5The partial settlement stated, in relevant part:

1.

In partial settlement of Tax Court Docket No. 21276-13W et

al., petitioner 21276-13W, petitioner 21277-13W and the Internal

Revenue Service (IRS) (respondent) agree as follows:

2.

Pursuant to this settlement agreement, the IRS shall pay

petitioners a sum of $4,800,000, less a 6.8% sequester reduction of

$326,400, for a total of $4,474,000.[2] This sum represents 24% of the

$20,000,001 paid by * * * [targeted business] to the IRS as restitution

pursuant to its guilty plea * * * which the parties agree constitutes

collected proceeds within the meaning of 26 U.S.C.

§ 7623(b) in this matter. * * *

*

*

*

*

*

*

*

4.

The parties do not agree on whether or not the remaining

$54,131,693.42 collected by the government from * * * [targeted

business] pursuant to the plea constitutes collected proceeds within

the meaning * * * [of] 26 U.S.C. § 7623(b), and will continue to

litigate this issue. If any portion of the remaining $54,131,693.42, is

ultimately determined to be collected proceeds through the judicial

process, respondent shall pay petitioners a further sum representing

¹(...continued)

awards. See Lewis v. Commissioner, 154 T.C. __, __ (slip op. at 27-29)

(Apr. 8, 2020).

2The difference between $4,800,000 and $326,400 is $4,473,600, not

$4,474,000, as stated in the agreement. When the Commissioner paid the

whistleblowers pursuant to this clause of the agreement, he actually paid them

$4,473,600. The Commissioner paid that agreed amount in December 2015,

shortly after the partial settlement was signed, and the amount we later ordered in

our January 2017 decisions included the amount already paid in December 2015.

-624% of the amount of those collected proceeds. Any such further

payment will be reduced by the sequester reduction percentage in

effect at the time of payment.

[Emphasis added.]

The parties did not enter this partial settlement into the record until the

whistleblowers filed the Motions. Instead, they "informed the Court that: (1) they

agree that petitioners are eligible for an award; and (2) the award is to be 24% of

the collected proceeds, i.e., proceeds that are eligible for an award; but (3) they

could not reach agreement as to the amount of the collected proceeds."

Whistleblower 21276-13W v. Commissioner, 147 T.C. at 122. Subsequent

submissions to the Court referred to the settlement without attaching the parties'

agreement.

On August 3, 2016, we issued our second Opinion, holding that the disputed

$54 million should have been included in collected proceeds for purposes of an

award under section 7623(b).3 Whistleblower 21276-13W v. Commissioner, 147

T.C. at 138-140. We concluded our Opinion by calculating the amounts of the

whistleblowers' awards and treating as collected proceeds the entire $74 million

stipulated by the parties.

3Unless otherwise indicated, all section references are to the Internal

Revenue Code (the "Code") in effect at all relevant times.

-7We entered a decision in docket No. 21276-13W on January 27, 2017,

which stated:

On August 3, 2016, the Court rendered an Opinion (147 T.C.

No. 4) with respect to petitioners' claim for a whistleblower award

under I.R.C. sec. 7623(b). As part of that Opinion, the Court

calculated that the two petitioners were entitled to a combined

whistleblower award of $17,791,607.[4] Pursuant to that

determination, it is

ORDERED and DECIDED that Whistleblower 21276-13W is

entitled to a whistleblower award of $8,895,803.50.

We entered an equivalent decision in docket No. 21277-13W on the same day,

ordering and deciding "that Whistleblower 21277-13W is entitled to a

whistleblower award of $8,895,803.50." (For convenience, we refer to the two

decisions as the "January 2017 Decisions.")

The Commissioner appealed the January 2017 Decisions, but, on

March 29, 2018, the U.S. Court of Appeals for the District of Columbia Circuit

dismissed the appeal pursuant to the parties' joint stipulation for dismissal.

On May 14, 2018, the Commissioner paid the whistleblowers a combined

$9,539,391.235 (in addition to the $4,473,600 previously paid). To calculate this

4The $17,791,607 consisted of 24% of the agreed collected proceeds

($20,000,001) and 24% of the additional collected proceeds ($54,131,693).

5The amounts reflected in the text are drawn from Respondent's Response

(continued...)

-8payment, the Commissioner multiplied the agreed amount of criminal fines and

civil forfeitures ($54,131,693.42) by the agreed award percentage (24%), yielding

$12,991,606.42. As provided in the partial settlement, the Commissioner reduced

the award by 6.6% (i.e., by $857,446.02) to account for the sequester reduction

percentage in effect at the time of the payment, yielding $12,134,160.40. He also

withheld Federal income tax of $2,594,769.17, yielding the net payment of

$9,539,391.23.

In January 2019, the whistleblowers filed the Motions. They argue that the

January 2017 Decisions expressly state that they are entitled to a combined award

of $17,791,607, or $8,895,803.50 each. They do not challenge the income tax

withheld from the awards, but they "ask that the Court issue an order that

Respondent pay Petitioners the sequester reduction subtracted from the payment

Respondent wired to Petitioners' counsel."

The Commissioner objects to the Motions. He contends that the

whistleblowers have been paid in full.

5(...continued)

to Motion To Enforce Judgement and To Obtain a Court Ordered Remedy, filed

March 22, 2019. The Motions state that "[o]n May 14, 2018, the IRS wired

$9,709,754.86." The record does not reveal the reasons for the disparity in these

two amounts.

-9Discussion

I.

Jurisdiction

Neither party questions our authority to reach the merits of the

whistleblowers' Motions. Nevertheless, in view of the procedural posture of these

cases, and particularly given that the Motions were filed long after the

January 2017 Decisions became final,6 we begin by considering whether we have

that authority.

A.

Applicable Framework

As an initial matter, we note that, like all Federal courts, we are a court of

limited jurisdiction. Estate of Wenner v. Commissioner, 116 T.C. 284, 286 (2001)

(citing Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572, 578

(7th Cir. 1999)). We exercise jurisdiction only over matters that Congress

expressly authorizes us to consider. See sec. 7442; Estate of Young v.

Commissioner, 81 T.C. 879, 881 (1983). Of course, we always have jurisdiction

6As noted above, the Commissioner appealed the January 2017 Decisions,

and the U.S. Court of Appeals for the District of Columbia Circuit dismissed that

appeal on March 29, 2018, based on the parties' joint stipulation for dismissal.

Under section 7481(a)(2)(A), the January 2017 Decisions became final "[u]pon the

expiration of the time allowed for filing a petition for certiorari," that is, on June

27, 2018. See 28 U.S.C. sec. 2101(c) (2018). The Motions were filed in January

2019, more than seven months after the January 2017 Decisions became final and

more than eight months after the payment was made.

- 10 to determine whether we have jurisdiction. Cooper v. Commissioner, 135 T.C. 70,

73 (2010). And we must assure ourselves of our jurisdiction even when not asked

to by the parties. Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1004

(1978). Our jurisdiction is neither expanded nor contracted by the positions of the

parties, and is a question that we decide independently. Ringo v. Commissioner,

143 T.C. 297, 299 (2014). As we have said before:

"Without jurisdiction the court cannot proceed at all in any cause.

Jurisdiction is power to declare the law, and when it ceases to exist,

the only function remaining to the court is that of announcing the fact

and dismissing the cause." Steel Co. v. Citizens for a Better Enyt.,

523 U.S. 83, 94 (1998). We cannot avoid the jurisdictional issue by

assuming hypothetical jurisdiction and disposing of the case on the

merits. Id.

Blonien v. Commissioner, 118 T.C. 541, 551 (2002). "The truistic constraint on

the federal judicial power * * * is this: A federal court may not decide cases when

it cannot decide cases, and must determine whether it can, before it may."

Cross-Sound Ferry Servs., Inc. v. ICC, 934 F.2d 327, 340 (D.C. Cir. 1991)

(Thomas, J., concurring in part); accord In re Papandreou, 139 F.3d 247, 255 (D.C.

Cir. 1998) (quoting Cross-Sound Ferry concurrence with approval).7

7We note that, as Justice Ginsburg explained for a unanimous Court in

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-585 (1999):

While Steel Co. reasoned that subject-matter jurisdiction

(continued...)

- 11 B.

Jurisdiction With Respect to Whistleblower Actions

These cases involve whistleblower actions. Section 7623(b)(4) grants us

jurisdiction with respect to such actions as follows:

Appeal of award determination.--Any determination regarding an

award under paragraph (1), (2), or (3) may, within 30 days of such

determination, be appealed to the Tax Court (and the Tax Court shall

have jurisdiction with respect to such matter).

7(...continued)

necessarily precedes a ruling on the merits, the same principle does

not dictate a sequencing ofjurisdictional issues. "[A] court that

dismisses on . . . non-merits grounds such as . . . personal jurisdiction,

before finding subject-matter jurisdiction, makes no assumption of

law-declaring power that violates the separation of powers principles

underlying Mansfield[, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379,

382 (1884)] and Steel Company." In re Papandreou, 139 F.3d 247,

255 (C.A.D.C. 1998). It is hardly novel for a federal court to choose

among threshold grounds for denying audience to a case on the

merits. * * *

Moreover, as the D.C. Circuit recently explained in Matar v. Transp. Sec. Admin.,

910 F.3d 538, 541 (D.C. Cir. 2018):

"Steel Co.'s rule of priority does not invariably require considering a

jurisdictional question before agy nonjurisdictional issue." [Kaplan

v. Cent. Bank of the Islamic Republic of Iran,] 896 F.3d 501, 513

(D.C. Cir. 2018). Instead, "courts may address certain

nonjurisdictional, threshold issues" so long as those issues "can

occasion a '[d]ismissal short of reaching the merits.'" Id. (quoting

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422,

431 (2007) (alteration in original)).

We do not have such "nonjurisdictional, threshhold issues" before us in these

cases.

- 12 Neither party challenges the Court's jurisdiction to render the January 2017

Decisions. And, as discussed below, we have no reason to conclude we lacked

such jurisdiction.

We have previously held that we have the authority to remand a

whistleblower action to the Whistleblower Office when that office has abused its

discretion. Whistleblower 769-16W v. Commissioner, 152 T.C. 172 (2019).

Indeed, we should do so in virtually every case in which we find an abuse of

discretion. Id. at 178 ("The validity of the agency determination 'must, therefore,

stand or fall on the propriety of that' determination, and if it 'is not sustainable on

the administrative record', then the matter must be remanded for further

consideration." (citing Camp v. Pitts, 411 U.S. 138, 143 (1973), and SEC v.

Chenery Corp., 318 U.S. 80, 94-95 (1943))). But, as the Supreme Court and the

D.C. Circuit8 have held, "[o]n occasion * * * a remand would be futile * * * as

only one disposition is possible as a matter of law. In such cases, we retain and

decide the issue." George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1539

(D.C. Cir. 1992);9 accord NLRB v. Food Store Emps. Union Local 347, 417

8Any appeals in these cases would ordinarily be reviewed by the D.C.

Circuit. See sec. 7482(b)(1) (flush language).

°Berge v. United States, 949 F. Supp. 2d 36, 42-43 (D.D.C. 2013), helpfully

(continued...)

- 13 U.S. 1, 8 (1974) (A reviewing court must remand a case in which an

administrative agency committed an error of law except where it is "crystal-clear

[that the] Board error renders a remand an unnecessary formality." (citing NLRB

v. Express Publ'g Co., 312 U.S. 426 (1941), and Comm'ns Workers v. NLRB, 362

U.S. 479 (1960))). This is the uniform conclusion of the Courts of Appeals that

have considered the issue.¹°

°(...continued)

summarizes the D.C. Circuit's precedent as follows:

[The D.C.] Circuit recognizes a narrow exception to * * * [the

ordinary remand rule--that is, the general rule that, when an

administrative agency errs, the reviewing court ordinarily remands the

case to the agency to apply the correct legal standard in the first

instance. The exception applies] in cases where "[t]here is not the

slightest uncertainty as to the outcome of a[n] [agency] proceeding."

A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1489 (D.C. Cir. 1995). In

this small subset of administrative law cases, "remand to the agency is

an unnecessary formality" because "it is virtually inconceivable that

its decisions would differ in any way the second time from that which

occurred the first time," FEC v. Legi-Tech, Inc., 75 F.3d * * * [704,]

708-[7]09 [(D.C. Cir. 1996)] (citations omitted), or because there is

"only one rational course" for the Agency to follow upon remand,

Am. Fed'n of Gov't Emps., AFL-CIO v. Fed. Labor Relations Auth.,

778 F.2d 850, 862 n.19 (D.C. Cir. 1985). Thus, when "the outcome

of a new administrative proceeding is preordained," a district court

may forego the futile gesture of remand to the agency. A.L. Pharma,

Im, 62 F.3d at 1489 (citation and quotation marks omitted).

¹°See,e.g., NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982);

Hussain v. Gonzales, 477 F.3d 153, 157-158 (4th Cir. 2007); Zhao v. Gonzales,

(continued...)

- 14 In these cases, a remand would have been futile, as the parties had stipulated

both the amount of collected proceeds over which there was a dispute

(approximately $54 million) and the award percentage (24%). Once the Court

decided the meaning of the term "collected proceeds," only one disposition was

possible as to the issues that were before the Court. Accordingly, under the

authorities cited above, the Court's entry of the January 2017 Decisions was well

within the scope of its jurisdiction.

C.

Jurisdiction To Enforce January 2017 Decisions

Since we had jurisdiction to enter the January 2017 Decisions, we consider

next whether we have the authority to enforce those decisions. We start with a

basic principle that the U.S. Supreme Court summarized more than a century and a

half ago:

Jurisdiction is defined to be the power to hear and determine the

subject-matter in controversy in the suit before the court, and the rule

is universal, that if the power is conferred to render the judgment or

enter the decree, it also includes the power to issue proper process to

enforce such judgment or decree. [Fn. ref. omitted.]

*(...continued)

404 F.3d 295, 310-311 (5th Cir. 2005); Felisky v. Bowen, 35 F.3d 1027, 1041 (6th

Cir. 1994); Ghebremedhin v. Ashcroft, 392 F.3d 241, 243-244 (7th Cir. 2004);

Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004); Nielson v. Sullivan, 992

F.2d 1118, 1121-1122 (10th Cir. 1993); Davis v. Shalala, 985 F.2d 528, 534-535

(11th Cir. 1993); see also Kristin E. Hickman & Richard J. Pierce, Jr.,

Administrative Law Treatise § 20.1 (6th ed. 2019).

- 15 Riggs v. Johnson Cty., 73 U.S. (6 Wall.) 166, 187 (1867) (citing Rhode Island v.

Massachusetts, 37 U.S. (12 Pet.) 657, 718 (1838)); accord Peacock v. Thomas, 516

U.S. 349, 356 (1996). Recognizing this universal rule, when Congress established

this Court as "a court of record" in 1969, sec. 7441; see also Freytag v.

Commissioner, 501 U.S. 868, 888-892 (1991) (observing that this Court exercises

a portion of the judicial power of the United States), Congress made clear that the

Court "shall have such assistance in the carrying out of its lawful writ, process,

order, rule, decree, or command as is available to a court of the United States,"

sec. 7456(c). In adopting section 7456(c), Congress confirmed the Court's power

to enforce its own orders."

"The first sentence of section 7441 and the relevant portion of what is now

section 7456(c) were enacted by the Tax Reform Act of 1969, Pub L. No. 91-172,

secs. 951 and 956, 83 Stat. at 730, 732. Those provisions were first introduced in

a Senate amendment (in the nature of a substitute) to a House bill. Committee

Amendment, H.R. 13270, 91st Cong., 1st Sess. (Nov. 21, 1969). "For those who

consider legislative history relevant," Warger v. Shauers, 574 U.S. 40, 48 (2014),

we note that, in explaining the provisions proposed in the Senate amendment, the

Senate Finance Committee observed that the "amendments are * * * concerned

with making the Tax Court * * * [a] court * * * and expanding its powers

accordingly," S. Rept. No. 91-552, at 303 (1969), 1969-3 C.B. 423, 615 (emphasis

added). Therefore, "[t]he bill establishes the Tax Court as a court" and "[i]n

accordance with this change, the Tax Court is given the same powers regarding *

* * the carrying out of its writs, orders, etc., that Congress has previously given to

the District Courts." Id. at 304, 1969-3 C.B. at 615-616. The conference report

noted that the final bill followed the Senate amendment, see H.R. Rept. No. 91782, at 341 (1969), 1969-3 C.B. 644, 682, and summarized the changes as follows:

(continued...)

- 16 This conclusion is not affected by the long line of cases holding that

section 7481 and its predecessors impose special considerations regarding the

finality of decisions of the Tax Court. See, e.g., Helvering v. N. Coal Co., 293

U.S. 191, 192 (1934) (denying petitions for rehearing that were filed after the

underlying decisions had become final under the predecessor to section 7481);

Kenner v. Commissioner, 387 F.2d 689, 690-691 (7th Cir. 1968) ("It has been

settled that * * * finality [under section 7481] precludes any subsequent

reconsideration by the tax court, at least on such grounds as mistake, newly

discovered evidence, and the like. It has also been decided that where such

finality is reached by lapse of the prescribed period after decision by the Supreme

Court it precludes further consideration by the Supreme Court on application for

rehearing." (Fn. ref. omitted.)); see also Harbold v. Commissioner, 51 F.3d 618,

622 (6th Cir. 1995) (applying the same principle); Toscano v. Commissioner, 441

F.2d 930, 932-933 (9th Cir. 1971) (same), vacating 52 T.C. 295 (1969). A motion

to enforce a decision already issued does not challenge the finality of our prior

proceedings, the timing of which is determined under section 7481. To the

"(...continued)

(1) "The Tax Court is established as a court[;]" and (2) "The Tax Court is given

powers regarding * * * the carrying out of its writs, orders, etc., equivalent to

those which Congress has previously given to the district courts," id.

- 17 contrary, such a motion seeks conformity with a final decision already made.

Accordingly, entertaining the motion is entirely consistent with section 7481. Of

course, section 7481 and the long line of cases applying it would provide an

insurmountable obstacle for a party that, under the guise of a motion to enforce,

sought to relitigate matters that were, or could have been, considered in our prior

proceedings.

Likewise, the inclusion in the Code of section 6512(b)(2) does not

undermine the scope of authority granted under section 7456(c).

Section 6512(b)(2), titled "Jurisdiction to enforce," was adopted in 1988. It

expressly grants the Court "jurisdiction to order * * * [a] refund," sec. 6512(b)(2),

if (1) the Court has determined an overpayment, see sec. 6512(b)(1), and (2) the

Secretary has failed to refund that overpayment within 120 days after the Court's

decision has become final, sec. 6512(b)(2). It might be argued that the specific

grant of authority under section 6512(b)(2) to order something related to an

existing decision should be read to require a similar specific grant of authority for

the Court to enforce its decisions in all cases, implying that the authority reflected

in section 7456(c) might not be sufficient as suggested above. That argument

would be misplaced. Section 6512(b)(2) does not address itself to the enforcement

of an existing decision. That is, it does not simply give us additional authority to

- 18 tell the Commissioner that we really mean what we have previously said. Rather,

section 6512(b)(2) grants us additional authority to decide a new question-namely, whether, in light of our prior conclusion that an overpayment exists, the

taxpayer is actually entitled to a refund. This additional authority is necessary

because our jurisdiction under section 6512(b)(1) is limited to deciding the

amount of an overpayment. See, e.g., Weber v. Commissioner, 138 T.C. 348, 366-

367 (2012); Estate of Quick v. Commissioner, 110 T.C. 440, 443-444 (1998),

supplementing 110 T.C. 172 (1998). But the existence of an overpayment does

not necessarily mean that a refund is due. See, e.g., Empire Ordnance Corp. v.

Harrington, 249 F.2d 680, 681-682 (D.C. Cir. 1957) (citing United States ex rel.

Girard Tr. Co. v. Helvering, 301 U.S. 540, 542-543 (1937)); Weber v.

Commissioner, 138 T.C. at 367. The overpayment could be credited to satisfy

another liability of the taxpayer, thereby eliminating the refund. Sec. 6402(a);

Empire Ordnance Corp., 249 F.2d at 682; Weber v. Commissioner, 138 T.C. at

367. Thus, an order enforcing our decision finding an overpayment would not

automatically result in an order that a refund be made. Section 6512(b)(2) is

therefore necessary to grant us the authority to review the additional facts required

for deciding whether a refund is in fact due. By contrast, in a case under

section 7623, our inquiry focuses on the determination made by the Whistleblower

- 19 Office, and an order to enforce our decision would not require a review of

ancillary matters, such as, for example, the whistleblower's own outstanding tax

liabilities.

In view of the foregoing, we conclude that we have the authority to consider

the merits of the whistleblowers' Motions. The concurring opinion suggests that

we should have avoided addressing "the interesting and difficult theoretical

question whether we have the power to 'enforce' our decisions" and disposed of

these cases by issuing "an order giving the answer that appears in [P]art II of the

opinion of the Court." Concurring op. p. 27.

But the path the concurring opinion suggests is not open to us. That path is

based on the premise that "the [M]otions in fact simply call on us to clarify our

decisions." g This premise is incorrect. The whistleblowers seek no mere

clarification of the January 2017 Decisions. On the contrary, they maintain that

the January 2017 Decisions are "clear and unambiguous." "Memorandum of Law

and Points of Authorities in Support of Petitioner's [sic] Motion To Enforce Order

and Obtain a Court-Ordered Remedy" at 3. What the whistleblowers want is for

the Court to enforce the January 2017 Decisions.

The title of the whistleblowers' submission, the analysis and authorities

cited in that submission, and the proposed order included with that submission all

- 20 confirm this point. The full title of the submission is "Petitioners' Motion To

Enforce Judgment and To Obtain a Court-Ordered Remedy." The opening

paragraph of the submission highlights "the Court's inherent power to enforce its

own judgments and decrees" and directs us to rule 70(a) of the Federal Rules of

Civil Procedure. That rule is titled "Enforcing a Judgment for a Specific Act."

Further, a proposed order included with the submission contains the following

statement: "Respondent is directed that within 90 days the IRS shall pay

Petitioners the portion of the award it previously withheld due to sequestration."

In view of the relief that the whistleblowers seek (an order enforcing our

January 2017 Decisions by directing the Commissioner to undertake certain

actions), we cannot avoid addressing whether we have the authority to enforce the

January 2017 Decisions. See supra Part I.A. But, also in view of the relief that the

whistleblowers seek, we need not decide here the precise contours of our authority

to enforce our decisions. See infra Part II. E concurring op. p. 27.

Assured of our authority to consider the merits of the whistleblowers'

Motions, we turn next to considering whether the Motions should be granted.

- 21 II.

The Merits of the Motions

The Motions argue that, under the January 2017 Decisions, the

whistleblowers are entitled to receive a combined award of $17,791,607, or

$8,895,803.50 each. They specifically "ask that the Court issue an order that

Respondent pay Petitioners the sequester reduction subtracted from the payment

Respondent wired to Petitioners' counsel." The Motions in effect maintain that,

under the January 2017 Decisions, the Commissioner is obligated to pay to the

whistleblowers a specific amount without regard to any other considerations. The

whistleblowers ignore the terms of the partial settlement and misinterpret the

Court's January 2017 Decisions.

As an initial matter, we note that the parties explicitly addressed the

sequestration issue in their partial settlement agreement. There, the parties agreed

that $20,000,001 paid to the Government as restitution constituted collected

proceeds and that the whistleblowers were entitled to an award of 24%, less a

sequester reduction. The parties left for judicial resolution the treatment of the

remaining $54,131,693.42 collected by the Government, but they expressly noted

that "[alny such further payment will be reduced by the sequester reduction

percentage in effect at the time of payment." (Emphasis added.) Although the

parties did not inform the Court of the precise terms of their settlement, they did

- 22 explain that a settlement had been reached. And the settlement provided the

backdrop for our subsequent proceedings.

The whistleblowers now seek to back out of their deal, contending that our

entry of the January 2017 Decisions in specific amounts foreclosed their

agreement to reduce any further award payments by the applicable sequester

reduction percentage when the award payments were made. We disagree.

Nothing in the January 2017 Decisions set aside this express agreement of the

parties.

The January 2017 Decisions do not purport to specify a particular amount

that the Commissioner must pay to each whistleblower in all events. Rather, the

January 2017 Decisions set out the gross amounts "calculated" as part of the

Court's Opinion, based on the underlying "collected proceeds" and the "award

percentage" the parties had stipulated in connection with that Opinion. As the

decision in docket No. 21276-13W states:

On August 3, 2016, the Court rendered an Opinion (147 T.C.

No. 4) with respect to petitioners' claim for a whistleblower award

under I.R.C. sec. 7623(b). As part of the Opinion, the Court

calculated that the two petitioners were entitled to a combined

whistleblower award of $17,791,607. Pursuant to that determination,

it is

- 23 ORDERED and DECIDED that Whistleblower 21276-13W is

entitled to a whistleblower award of $8,895,803.50.

The decision in docket No. 21277-13W contains virtually identical statements.

In short, the January 2017 Decisions may not properly be read as a

determination of a sum certain payable to the whistleblowers no matter what. A

simple point illustrates why this is so. As shown above, the amount of the award

for Whistleblower 21276-13W reflected in the decision in docket No. 21276-13W

is equal to half of the total amount calculated in the Opinion--i.e., $8,895,803.50 =

$17,791,607 × 50%. The total amount calculated in the Opinion in turn was

determined by multiplying the total amount of collected proceeds ($74,131,694)

by the award percentage agreed to by the parties (24%)--i.e., $17,791,607 =

$74,131,694 × 24%. The total amount of collected proceeds consisted of two

portions, the $20,000,001 with respect to which there was no dispute and the

$54,131,693 (consisting of the criminal fine of $22,050,000 and the civil

forfeitures of $32,081,693) with respect to which there was a dispute. Before the

Court issued the August 2016 Opinion, the whistleblowers had already been paid

$4,473,600 with respect to the award attributable to the $20,000,001 that was not

in dispute. That payment was computed by multiplying the agreed-upon collected

proceeds of $20,000,001 by the agreed-upon award percentage of 24% and

- 24 subtracting from that amount a 6.8% sequester reduction--i.e., $4,473,600 =

($20,000,001 × 24%) - ($20,000,001 × 24% × 6.8%). If the January 2017

Decisions were read as requiring the Commissioner to pay to the whistleblowers

the total sum certain reflected in the decision documents (the combined

$17,791,607), it could be argued that the IRS could not reduce that amount by the

$4,473,600 previously paid to the whistleblowers. Similarly, under that reading,

the whistleblowers would conceivably be entitled to be paid the $326,400

($20,000,001 × 24% × 6.8%) sequestration amount that had previously been

withheld from the payment made with respect to the $20,000,001 agreed-upon

collected proceeds. After all, as shown above, the overall amount reflected in the

January 2017 Decisions related to all collected proceeds, not just to the collected

proceeds that were in dispute.

Such a reading of the January 2017 Decisions leads to an insupportable

result and appears to be too extreme even for the whistleblowers. The Motions do

not assert, and appear instead to disclaim, any entitlement to the $4,473,600

previously paid to the whistleblowers, or to the $326,400 sequestration amount

that was withheld from that prior payment, or to the income tax withheld from the

later payment. These apparent concessions confirm that the whistleblowers'

reading of the January 2017 Decisions is incorrect. Contrary to their assertions,

- 25 the January 2017 Decisions simply calculated the gross award amounts that would

follow based on the numbers the parties had presented to the Court. The January

2017 Decisions were not intended to upset the narrowing of the issues that the

parties (at the urging of the Court after the issuance of the June 2015 Opinion) had

agreed upon in connection with setting up the "collected proceeds" issue for the

Court's resolution. Nothing in the January 2017 Decisions sets aside this express

agreement of the parties.

In short, the Commissioner's actions here were consistent with the Court's

January 2017 Decisions.¹²A deal is a deal, and, as we concluded in similar

circumstances in another whistleblower case, the whistleblowers must abide by the

bargain they struck. See Whistleblower 4496-15W v. Commissioner, 148 T.C.

425, 432-437 (2017).

These cases should, however, serve as a cautionary tale to parties that reach

partial settlements. Filing with the Court complete copies of the agreements that

¹²Inlight of our conclusion on the proper reading of the January 2017

Decisions based on the parties' express agreement, we need not address the

whistleblowers' remaining contentions with respect to the applicability of the rules

governing sequestration, although we note that we recently rejected the claim that

sequestration does not apply to whistleblower awards. See Lewis v.

Commissioner, 154 T.C. at __ (slip op. at 27-29).

Moreover, in light of our conclusion that the Motions should be denied, we

need not decide today what form our enforcement action might take in an

appropriate case.

- 26 reflect any settlements reached by the parties gives the Court a fuller picture of the

disputes that remain at issue and permits the Court to render decisions that

appropriately take into account the parties' agreements. That, in turn, may spare

the parties the inconvenience and expense of postdecision litigation avoidable

through greater transparency.

Conclusion

For the reasons stated above, the Motions will be denied.

An appropriate order will be issued.

Reviewed by the Court.

FOLEY, GALE, THORNTON, MORRISON, BUCH, NEGA, PUGH,

ASHFORD, URDA, COPELAND, and GREAVES, M., agree with this opinion of

the Court.

JONES, J., concurs in the result in Part II of this opinion.

PARIS and KERRIGAN, H., did not participate in the consideration of this

opmlon.

- 27 GUSTAFSON, J., concurring in the result: Petitioners filed "Motion[s] to

Enforce" our decisions. Notwithstanding the titles of the motions and the

authorities they invoke, the motions in fact simply call on us to clarify our

decisions. I would have construed them as motions to clarify and would have

issued an order giving the answer that appears in part II of the opinion of the

Court.

Instead, the majority took these motions as an occasion to address, in part I

of the Opinion, the interesting and difficult theoretical question whether we have

the power to "enforce" our decisions. There no controversy between the parties

about this question. The opinion of the Court says the answer is "Yes"; but we

still do not know what "enforcing" a decision might mean--unless it means

nothing more than issuing an order saying what we meant. We clarify our

decisions from time to time (usually if not always in unpublished orders), and no

one ever doubted that we have the power to do so.

If the circumstance ever arises in which we actually need to know whether

we can "enforce" a decision (other than by merely clarifying ourselves), then that

would be the time to answer that question--informed by advocacy and faced with a

concrete question about real "enforcement". In the meantime, we do not know the

significance (if any) of what the Court purports to decide today.