Patrick Kennedy v. Commissioner of Internal Revenue

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2024 Decided July 8, 2025
No. 21-1133
PATRICK KENNEDY ,
APPELLANT
v.
COMMISSIONER OF I NTERNAL REVENUE ,
APPELLEE
Appeal from the United States Tax Court
Paul D. Scott argued the cause for amicus curiae The
Anti-Fraud Coalition in support of appellant. With him on the
briefs was Lani Anne Remick.
Patrick S. Kennedy, pro se, was on the briefs for appellant.
Julie Ciamporcero Avetta, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the briefs
were Bruce R. Ellisen and Matthew S. Johnshoy, Attorneys.

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No. 22-1239
ROY J. M EIDINGER, SR.,
APPELLANT
v.
COMMISSIONER OF I NTERNAL REVENUE ,
APPELLEE
Appeal from the United States Tax Court
Jillian Sheridan Stonecipher, appointed by the court,
argued the cause for appellant as amicus curiae. With her on
the briefs were Jeffrey T. Green and Jennifer J. Clark.
Roy J. Meidinger, pro se, was on the briefs for appellant.
Julie Ciamporcero Avetta, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
was Bruce R. Ellisen, Attorney. Norah Bringer, Arthur T.
Catterall, and Matthew S. Johnshoy, Attorneys, entered
appearances.
Before: HENDERSON, RAO and W ALKER, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON .

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KAREN LE C RAFT HENDERSON , Circuit Judge: In recent
years, this Court has considered the bounds of the U.S. Tax
Court’s jurisdiction to review whistleblower claims under 26
U.S.C. § 7623(b). In 2022, we held that one portion of
subsection (b)(1)—requiring the Internal Revenue Service
(IRS) to have “proceed[ed] with an[] administrative or judicial
action”—is jurisdictional. See Li v. Comm’r, 22 F.4th 1014
(D.C. Cir. 2022). On the facts of Li, we concluded that if the
IRS Whistleblower Office (WBO) neither forwards a
whistleblower’s claim to an IRS operating division nor acts
against a taxpayer, there is no judicially reviewable action. Id.
at 1017. More recently, we held that a second portion of
subsection (b)(1)—that the IRS have “collected” “proceeds . . .
as a result of the action”—is non-jurisdictional. Lissack v.
Comm’r, 125 F.4th 245 (D.C. Cir. 2025). On the facts of
Lissack, we concluded that once the WBO forwards the
whistleblower’s claim to an IRS operating division and that
division audits the targeted taxpayer, the Tax Court has
jurisdiction to review the whistleblower’s award. Id. at 254–
56.
In these consolidated appeals, the WBO sent two
whistleblowers’ claims to an operating division but that
division took no action against any taxpayer. We are asked to
resolve whether these facts fall on the Li or Lissack side of the
jurisprudential cleavage and, accordingly, whether the Tax
Court may properly exercise jurisdiction. We hold that Li
controls and therefore the Tax Court lacks jurisdiction. The
movement of a whistleblower’s form from one wing of the IRS
to another is an exercise in paperwork shuffling, not a
jurisdictionally relevant affair. We accordingly dismiss Roy
Meidinger’s petition in toto for want of jurisdiction, dismiss
two of Patrick Kennedy’s claims and deny his third claim on
the merits, and remand to the Tax Court for proceedings
consistent with this opinion.

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I. BACKGROUND
A. Statutory & Regulatory Background
A longstanding feature of our nation’s tax laws has been a
monetary award system for whistleblowers who aid the
government in detecting tax violations. See 26 U.S.C.
§ 7623(a). This program, dating to 1867, previously left award
payments to the Secretary’s unreviewable discretion. See Act
of March 2, 1867, Pub. L. No. 39-169, § 7, 14 Stat. 471, 473.
As a result, the whistleblower system was subject to “arbitrary
and inconsistent” decision making. Whistleblower 11332-13W
v. Comm’r, 142 T.C. 396, 400 (2014) (citing Treasury
Inspector General report). In 2006, the Congress responded by
amending § 7623 as part of the Tax Relief and Health Care Act
(TRHCA) to mandate award payments to certain
whistleblowers whose information leads to tax recoveries
above a minimum threshold. Pub. L. No. 109-432, § 406, 120
Stat. 2922, 2958–60. The TRHCA also created the
Whistleblower Office within the IRS. Id. § 406(b).
The whistleblower process commences when a claimant
files a Form 211 with the WBO. Form 211 is a standardized
application used by a whistleblower to alert the IRS to possible
tax violations and to seek a monetary share of the agency’s
eventual recovery. 26 C.F.R. § 301.7623-3(e)(2)(i) (2019).
Under Treasury regulations, the WBO conducts an initial
review to determine whether to reject the Form 211 for lack of
a colorable claim to compensation. Id. § 301.7623-3(c)(7). A
rejection “relates solely to the whistleblower and the
information on the face of the claim that pertains to the
whistleblower.” Id. If a Form 211 survives this stage, it then
proceeds to an IRS operating division for further review, at
which point the IRS may still deny the form. A denial “relates

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to or implicates taxpayer information” and may occur if “the
IRS either did not proceed based on the information provided
by the whistleblower . . . or did not collect proceeds.” Id.
§ 301.7623-3(c)(8).
Should the IRS “proceed[] with any administrative or
judicial action . . . based on information” provided by a
whistleblower, that whistleblower “shall . . . receive as an
award” between 15 and 30 per cent of the recovery, depending
on “the extent to which the individual substantially contributed
to [the] action.” 26 U.S.C. § 7623(b)(1). Subsections (b)(2)
and (b)(3) limit awards if the whistleblower’s information was
not the principal basis for the IRS’s action or if the
whistleblower planned and initiated the wrongdoing. A
whistleblower dissatisfied with his award may appeal the IRS’s
decision to the Tax Court, which has jurisdiction to hear
appeals of “[a]ny determination regarding an award under”
subsections (b)(1)–(3). Id. § 7623(b)(4).
The Tax Court initially interpreted § 7623(b)(4) to confer
jurisdiction to review “the amount or denial of an award
determination,” Cooper v. Comm’r, 135 T.C. 70, 75 (2010)
(emphasis added), on the theory that “a denial or rejection is a
(negative) ‘determination regarding an award,’” Lacey v.
Comm’r, 153 T.C. 146, 163 n.19 (2019). We disagreed in Li
and held that “Cooper and Lacey were wrongly decided” and
that § 7623(b)(4) does not grant “the Tax Court jurisdiction
over the threshold first step, the initial rejection of a
whistleblower award before the WBO makes an award
determination under subsections (b)(1)–(3).” 22 F.4th at 1016–
17. As Li explained, “[a] threshold rejection of a Form 211 by
nature means that the IRS is not proceeding with an action” and
thus “there is no award determination, negative or otherwise,
and no jurisdiction for the Tax Court.” Id. at 1017. More
recently, the Court clarified that Li’s jurisdictional holding

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applied only to whether the IRS “proceeds with an action,” not
to whether the IRS “collected proceeds based on the
whistleblower’s information.” Lissack, 125 F.4th at 255
(internal quotations omitted). To conclude otherwise would
“render[] the jurisdictional grant coextensive with the merits of
a whistleblower appeal.” Id.
B. Factual & Procedural Background
1. Roy Meidinger
Petitioner Roy Meidinger asserts that discounts offered by
healthcare providers to insurance companies constitute a form
of debt relief. Because this relief has gone untaxed, the
industry has ostensibly received an improper windfall to the
tune of nine trillion dollars. For years, Meidinger has
unsuccessfully pursued a trifecta of whistleblower claims
stemming from his debt-relief theory. See Meidinger v.
Comm’r, 559 F. App’x 5 (D.C. Cir. 2014); Meidinger v.
Comm’r, 771 F. App’x 112 (D.C. Cir. 2019); Meidinger v.
United States, 146 Fed. Cl. 491 (2020), aff’d, 989 F.3d 1353
(Fed. Cir. 2021).
On July 18, 2019, Meidinger took one more bite at the
apple. He submitted a Form 211 to the WBO that was in all
material respects a repetition of his previous allegations. Upon
receipt of Meidinger’s latest allegations, the WBO reviewed
Meidinger’s claim and recommended that it be forwarded to
the IRS Tax Exempt and Government Entities (TEGE)
Operating Division. The TEGE reviewed Meidinger’s claim,
surveyed the pertinent tax return and chose not to investigate
further because his allegations were “not specific, credible, or
[were] speculative.”1 Supplemental Appendix (S.A.) 40–42.
1 A survey is “[t]he process by which an examiner makes the
determination not to audit [a] tax return . . . before examining any

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The WBO then prepared its own memorandum, which
recommended that the IRS reject Meidinger’s claims on the
same grounds. Three days later, on January 31, 2020, the IRS
informed Meidinger by letter that the WBO had “made a final
decision to reject [his] claim.” S.A. 1.
On February 20, 2020, Meidinger timely appealed to the
Tax Court. See 26 U.S.C. § 7623(b)(4). The IRS moved to
dismiss on the ground that the Tax Court lacked authority to
compel the IRS to proceed with an administrative or judicial
action. Relying on Lacey, the Tax Court denied the IRS’s
dismissal motion. Litigation continued apace until early 2022,
at which time the Tax Court ordered a stay of proceedings in
light of our intervening decision in Li. On July 5, 2022, the
Tax Court lifted the stay and dismissed Meidinger’s case for
lack of jurisdiction. Meidinger pro se filed a timely appeal to
the Eleventh Circuit, which transferred the case to this Circuit.
See 26 U.S.C. § 7483 (granting 90 days to appeal a decision of
the Tax Court); Fed. R. App. P. 13(a)(1) (same). We appointed
Jeffrey T. Green as amicus curiae in support of Meidinger. 2
2. Patrick Kennedy
Petitioner Patrick Kennedy filed a whistleblower
complaint with the WBO in April 2012. In his Form 211,
Kennedy alleged that three interrelated corporations owed over
$150,000,000 in unpaid taxes. In brief, Kennedy claimed that
books and records, because an examination would not result in a
material change to the taxpayer’s tax liability.” IRM pt. 4.10.2.1.4(1)
(Sept. 9, 2019) (emphasis added).
2 During the pendency of this appeal, Green retired and was
replaced by Jennifer Clark. Ms. Clark has more than ably discharged
her duties and we thank her and the other Amicus counsel of record
for their assistance.

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Taxpayer 1 raided the assets of Taxpayers 2 and 3, tax-exempt
employee beneficiary associations, for its own use. The WBO
screened Kennedy’s claim and referred it to the Large Business
and International (LB&I) Operating Division. At this point,
Kennedy’s claim became mired in bureaucratic delay.
LB&I determined that Kennedy’s claim fell outside its
bailiwick and transferred his complaint to the TEGE. Around
the same time, the IRS trifurcated Kennedy’s Form 211 into
three separate claims, one against each of the targeted
taxpayers. The TEGE placed its review of Taxpayer 1“in
suspense” because it was outside the TEGE’s domain. In
effect, Kennedy’s Taxpayer 1 claim fell into a jurisdictional
black hole: neither evaluated by the LB&I nor subject to the
TEGE’s examination. The TEGE took no action regarding
Kennedy’s Taxpayer 2 claim because the company was a
defunct entity.
As to Taxpayer 3, Kennedy’s claim found greater traction.
A revenue agent in the TEGE undertook an examination—i.e.,
an audit—of Taxpayer 3’s 2011 tax returns. That examination
languished for two years until its eventual completion in June
2015. The IRS ultimately concluded that Taxpayer 3 remained
eligible for tax exempt status and closed the record. The TEGE
then recommended that the IRS issue a denial letter because the
agency took no action on Kennedy’s first two claims and the
claim-three examination resulted in no change. The WBO
agreed and, in December 2016, it mailed Kennedy a
preliminary denial letter. Kennedy asked the IRS to reconsider
its denial to no avail. On February 1, 2017, nearly five years
after Kennedy commenced his quest, the IRS issued a final
decision denying all three of his claims.
On March 3, 2017, Kennedy timely appealed to the Tax
Court. The Tax Court reached the merits and concluded the

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WBO did not abuse its discretion in denying Kennedy’s claims.
Kennedy then appealed the Tax Court decision to the Seventh
Circuit, which deemed venue improper and transferred the case
to this Court. Kennedy’s appeal was held in abeyance pending
the resolution of Lissack. Once Lissack issued, the stay was
lifted and the case proceeded on the merits. Meidinger’s and
Kennedy’s cases were consolidated for disposition after oral
argument.
II. ANALYSIS
This Court exercises jurisdiction pursuant to 26 U.S.C.
§ 7482(a)(1) but our jurisdiction is predicated on the Tax Court
possessing jurisdiction in the first instance. See United States
v. Corrick, 298 U.S. 435, 440 (1936) (explaining that, where
the lower court lacks jurisdiction, “we have jurisdiction on
appeal, not of the merits, but merely for the purpose of
correcting the error of the lower court in entertaining the suit”).
We review Tax Court decisions as we do decisions of the
district court sitting without a jury. 26 U.S.C. § 7482(a)(1).
We consider de novo the Tax Court’s jurisdictional
determinations, Myers v. Comm’r, 928 F.3d 1025, 1031 (D.C.
Cir. 2019), as well as its decision to grant summary judgment,
Eshel v. Comm’r, 831 F.3d 512, 517 (D.C. Cir. 2016). We
review the IRS’s underlying determination for abuse of
discretion. Colacurcio v. Comm’r, 727 F. App’x 705, 706
(D.C. Cir. 2018) (per curiam).
The whistleblower statute authorizes the Tax Court to
review any “determination regarding an award under
paragraphs (1), (2), or (3)” of § 7623(b). 26 U.S.C.
§ 7623(b)(4). These consolidated appeals lie at the intersection
of two of our precedents interpreting § 7623(b)(4): Li and
Lissack. In Li, we held that the Tax Court lacks jurisdiction to
review “the initial rejection of a whistleblower award before

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the WBO makes an award determination under subsections
(b)(1)–(3).” 22 F.4th at 1016. There, “[t]he WBO did not
forward [the whistleblower’s] Form 211 to an IRS examiner
for further action, and the IRS did not take any action against
the target taxpayer.” Id. at 1017. Instead, the claim was
rejected during an initial screening “for vague and speculative
information.” Id. Rejection at this “threshold first step,” Li
explained, means that the IRS is not proceeding with
“administrative or judicial action” and thus there is no “award
determination, negative or otherwise, and no jurisdiction for
the Tax Court.” Id. (internal quotation marks omitted). In
other words, when the WBO rejects a Form 211 during an
initial review, that decision is unreviewable.
In Lissack, we held that the Tax Court had jurisdiction to
review the denial of a whistleblower award when the IRS had
conducted an examination based on the whistleblower’s
information. 125 F.4th at 254–56. There, the WBO “referred
[the whistleblower’s] submission to the IRS, and an IRS
revenue agent initiated an examination of the . . . issue that [the
whistleblower] identified.” Id. at 255. The Court concluded
that the IRS’s “referral and examination count as the IRS
proceeding with an administrative action that was based on the
information [the whistleblower] brought to the Secretary’s
attention.” Id. (citation modified). Rejecting the argument that
subsection (b)(1)’s second requirement—“that the IRS . . .
collect[] proceeds based on the whistleblower’s
information”—is jurisdictional, the Court found it sufficient
that the IRS had proceeded with administrative action against
the taxpayer identified by the whistleblower. Id. (internal
quotation marks omitted). Accordingly, the Court held that the
WBO’s denial of the whistleblower claim was a reviewable
“determination regarding an award” under § 7623(b)(4). Id.
The Court left for another day “the precise line between an

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unreviewable threshold rejection and a reviewable
determination.” Id. at 256.
In sum, Li presented a case in which the whistleblower’s
claim did not advance past the WBO and the IRS took no action
against a taxpayer. Lissack presented more: the
whistleblower’s claim was referred by the WBO to an
operating division that then examined the taxpayer before
ultimately denying the claim. Meidinger and Kennedy fall
between these two bookends. Meidinger’s Form 211 made it
past the WBO’s threshold screening and was referred to an IRS
operating division. But that division conducted no
investigation because it concluded that Meidinger’s claims
were wholly speculative or implausible. Kennedy’s Form 211
likewise progressed to an IRS operating division. On claims
one and two, the operating division took no action. On claim
three, the operating division conducted an examination of the
targeted taxpayer based on Kennedy’s information.
Both Meidinger and Kennedy contend that the WBO’s
transmission of their Form 211s to an operating division
conferred jurisdiction on the Tax Court.3 In other words, any
action succeeding Li’s “threshold first step” rejection suffices
to clothe the Tax Court with jurisdiction. Alternatively,
Meidinger’s Amicus urges that Li was wrongly decided and
should be overruled.4 As explained infra, Li forecloses
Meidinger’s case and Kennedy’s first two claims. Amicus’s
3 Because Meidinger and Kennedy advance similar arguments,
we focus primarily on Meidinger’s contentions. We address
Kennedy’s separate claims infra § II.C.
4 Another amicus, the Anti-Fraud Coalition (TAF), participated
in Kennedy’s appeal and argued the case on his behalf. Our reference
to “Amicus” is to Meidinger’s court-appointed amicus. TAF is
separately identified where appropriate.

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argument that Li should be overruled fares no better. On
Kennedy’s third claim, we exercise jurisdiction and affirm the
Tax Court.
A. Li Controls Meidinger’s Petition
Amicus offers three bases to support our jurisdiction of
Meidinger’s appeal. First, Li involved a “rejection” of a Form
211 but Meidinger’s claim was “denied.” Second, the WBO
sent Meidinger’s Form 211 to an operating division for further
examination, which constitutes “administrative action.” Third,
the plain text of § 7623(b) uses expansive terminology that
encompasses the IRS’s actions regarding Meidinger and
Kennedy’s claims.
1. Rejection vs. Denial
Amicus first argues that this case falls outside Li because
that case involved a rejection of a Form 211 but Meidinger’s
Form 211 was denied. See 26 C.F.R. §§ 301.7623-3(c)(7)
(rejection), (c)(8) (denial); Li, 22 F.4th at 1016–17 (holding
that Tax Court jurisdiction is lacking at the “threshold first
step,” when the IRS renders an “initial rejection of a
whistleblower award”). The IRS’s final letter to Meidinger
recites that his claim is “rejected,” not “denied.” But even if
we disregard the agency’s terminology, Amicus “read[s] too
much into too little” by narrowly focusing on a single sentence
plucked from Li rather than the logic of its reasoning. Nat’l
Pork Producers Council v. Ross, 598 U.S. 356, 373 (2023).
As we recently held in Shands v. Comm’r, “Li’s
jurisdictional rule does not turn on whether the IRS labeled its
decision a ‘rejection’ or a ‘denial.’” 111 F.4th 1, 9 (D.C. Cir.
2024). “Instead, our jurisdictional inquiry focuses on what the
IRS did—i.e., whether it ‘proceed[ed] with any administrative
or judicial action.’” Id. (quoting Li, 22 F.4th at 1017). In other

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words, unless the IRS initiates some action, there is no
judicially reviewable decision. Nothing in the text of § 7623(b)
speaks to rejections or denials; instead, the statute ties
jurisdiction to a “determination regarding an award under
paragraph (1), (2), or (3),” and such a determination arises only
if there has been “administrative or judicial action.” 26 U.S.C.
§ 7623(b)(1), (4).
2. WBO vs. Operating Division
The WBO referred Meidinger’s Form 211 to an operating
division, which reviewed Meidinger’s claim and surveyed one
taxpayer before ultimately recommending that the claim be
disposed of. This, Amicus posits, constitutes administrative
action. As Lissack explained, “[t]he phrase ‘administrative
action’ [] generally refers to acts of executive agencies.” 125
F.4th at 257. According to Amicus, the corollary is that any
act by an executive agency constitutes a judicially reviewable
administrative action. But Lissack went on to conclude that, in
context, “administrative action[s]” are limited to “actions for
‘detecting underpayments of tax’ or ‘detecting and bringing to
trial’ persons who violate or ‘conniv[e]’ to violate internal
revenue laws.” Id. (quoting 26 U.S.C. § 7623(a)). Lissack
added that “two other phrases from subsection(b)(1)”—
“‘based on’ and ‘substantially contributed’”—“help inform the
scope of ‘administrative action’” as used in the statute. Id.
(quoting 26 U.S.C. § 7623(b)(1)). These terms, Lissack
explained, limit administrative actions to actions “on the
discrete tax issue or issues the whistleblower’s information
identifies” if the whistleblower’s “information has
substantially contributed to the IRS’s administrative action and
its ultimate recovery.” Id. Amicus’s capacious reading of
administrative actions is also inconsistent with Li. Although a
threshold rejection of a Form 211 is an executive agency action,
Li held—and Lissack did not disturb—that a threshold rejection

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does not constitute an administrative action in the context of
§ 7623(b)(1).
We have no need here to flesh out the precise metes and
bounds of the meaning of “proceed[ing] with any
administrative . . . action.” 26 U.S.C. § 7623(b)(1). Amicus
offers only two distinctions between Li and this case:
(i) Meidinger’s Form 211 was sent to an IRS operating division
and (ii) an agent within that division surveyed a taxpayer.
Neither suffices.
First, unlike in Li, Meidinger’s Form 211 was transmitted
from the WBO to an operating division. That action does
nothing to bridge the jurisdictional chasm, as § 7623(b) does
not turn on which office of the IRS rejects (or denies) a Form
211. Although the statute vests the WBO with authority to
process a whistleblower claim, it may choose to “investigate
. . . matter[s] itself or assign [them] to the appropriate Internal
Revenue Service office.” TRHCA § 406(b)(1)(B); see also
IRM pt. 25.2.2.1.2(1) (Mar. 13, 2023) (“[TRHCA] explicitly
provides that the Whistleblower Office may determine whether
to proceed with an action or refer the claim to another division
for [its] consideration.”).5 Thus, any distinction between the
WBO and the operating division is irrelevant and, in turn, Tax
5 Pursuant to the cited authority, the IRS internally bifurcates
responsibility for claims evaluation between the WBO and its
operating divisions. The WBO conducts an initial prescreening
before forwarding the claim to an operating division for
classification and a determination of whether to initiate an
investigation. IRM pts. 25.2.1.2 (Apr. 29, 2019), 25.2.1.3 (May 28,
2020). A WBO rejection incorporates the operating division’s
recommendation, which reflects “an enforcement decision of the
operating division.” IRM pts. 25.2.1.3(2) (May 28, 2020), 25.2.1.3.1
(Mar. 10, 2023), 25.2.1.3.5(1) (Mar. 10, 2023).

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Court jurisdiction does not hinge on the WBO’s choice to retain
or transfer investigative authority.
Second, Amicus emphasizes that the operating division
surveyed a taxpayer. But a taxpayer survey is simply a
preliminary review used if the IRS decides “not to initiate an
examination of the taxpayer.” IRS Br. 27 n.4 (citing IRM pts.
4.10.2.5 (Sept. 29, 2022) & 4.10.2.5.1 (Sept. 9, 2019)); see also
IRM pt. 4.10.2.1.4(1) (Sept. 9, 2019). In Li, a WBO classifier
had similarly “reviewed . . . the target taxpayer’s . . . tax
returns,” yet that was not deemed an administrative action. 22
F.4th at 1015. A survey is no more than preliminary and
cursory review that falls short of an administrative action.
Rather, it is the same type of conduct this Court previously
found jurisdictionally immaterial in Li.
3. Section 7623(b)(4)’s Plain Text
Amicus next argues that Meidinger’s case falls within the
plain text of 26 U.S.C. § 7623(b)(4). The argument works like
this: Section 7623(b)(4) grants the Tax Court jurisdiction of
“[a]ny determination regarding an award under paragraph (1),
(2), or (3).” Amicus cites a variety of dictionaries and caselaw
to show that the words “any,” “determination” and “regarding”
all have broad and expansive meaning. It notes that courts
employ a clear statement rule before treating a statutory
requirement as jurisdictional. See, e.g., Gonzalez v. Thaler,
565 U.S. 134, 141–42 (2012). And Amicus highlights
legislative history that suggests the Congress intended to allow
whistleblowers to appeal award denials. Thus, Amicus
contends, there is an overriding gravitational pull in favor of
jurisdiction. Li carved out from this broad jurisdictional grant
a narrow sliver of cases that are rejected at the “threshold first
step.” Once a whistleblower’s claim advances past this first
step, Amicus asserts, Li’s logic runs out and § 7623(b)(4) takes

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over. That argument has no purchase. Statutory text, context
and background principles of administrative law uniformly
show that Li’s reach is more expansive than Amicus credits.
Under § 7623(b)(4), the Tax Court “shall have
jurisdiction” over “[a]ny determination regarding an award
under paragraph (1), (2), or (3)” of subsection (b). When read
in isolation, this language seems to fit the expansive
jurisdictional scope that Amicus presses. But “[s]tatutory
language has meaning only in context.” Graham Cnty. Soil &
Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409,
415 (2005). That context supports a narrower read than the
words might suggest when read “with blinders on.” Abramski
v. United States, 573 U.S. 169, 179 n.6 (2014); cf. Mellouli v.
Lynch, 575 U.S. 798, 811–12 (2015) (cautioning that because
the words “relating to,” “extended to the furthest stretch of their
indeterminacy, stop nowhere,” courts should ascertain whether
“context” supports “a narrower reading”) (citation modified).
The relevant context of a § 7623(b)(4) “determination” is its
cross-references to paragraphs (1)–(3).
Paragraph (1) speaks to “[t]he determination of the amount
of such award by the Whistleblower Office,” which “shall
depend upon the extent to which the individual substantially
contributed to such action.” 26 U.S.C. § 7623(b)(1) (emphasis
added). Paragraph (2) references that same determination: “the
Whistleblower Office[’s] determin[ation]” that an “action
described in paragraph (1)” is “based principally on”
information other than that provided by the whistleblower,
thereby warranting a reduction in the award. Id.
§ 7623(b)(2)(A). Finally, paragraph (3) addresses cases in
which the WBO’s “determin[ation] that the claim for an award
under paragraph (1) or (2) is brought by an individual who
planned and initiated the actions that led to the underpayment
of tax” or was convicted of violating internal revenue laws. Id.

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§ 7623(b)(3). The use of “identical words . . . in different parts
of the same act” indicates that those words “are intended to
have the same meaning.” Pereira v. Sessions, 585 U.S. 198,
211 (2018). A “determination” under paragraph (4) thus refers
to a discrete set of decisions:
(i) Any “determination of the amount of [the
whistleblower’s] award,” 26 U.S.C.
§ 7623(b)(1), including any reductions in the
award because the action was “based
principally on disclosures” from sources other
than the whistleblower, id. § 7623(b)(2)(A), or
the whistleblower “planned and initiated the
actions that led to” tax underpayment or was
convicted of violating IRS laws, id.
§ 7623(b)(3); or
(ii) Any determination of “the extent to which
the [whistleblower] substantially contributed to
[the] action,” id. § 7623(b)(1); or “the
significance of the individual’s information and
the role of such individual . . . in contributing
to such action,” id. § 7623(b)(2)(A).
These determinations are all predicated on the IRS
commencing an administrative or judicial action against a
taxpayer based on information provided by the whistleblower.
See id. § 7623(b)(1) (“If the Secretary proceeds with any
administrative or judicial action described in subsection
(a) . . . .”) (emphasis added); id. § 7623(b)(2)(A) (“In the event
the action described in paragraph (1) is . . . .”) (emphasis
added); id. § 7623(b)(3) (directing the WBO to reduce or deny
the whistleblower’s final award). Indeed, subsection (b) in its
entirety applies only “with respect to any action . . . against any
taxpayer” if “the proceeds in dispute exceed $2,000,000.” Id.

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18
§ 7623(b)(5) (emphasis added); cf. Comm’r v. Zuch, 605 U.S.
__, 2025 WL 1657419, at *4 (2025) (interpreting
“determination” in a parallel portion of the internal revenue law
to refer to an “ultimate ‘determination’” at the end of an
administrative proceeding). As Li explained, the IRS’s
threshold rejection of a Form 211 does not fall into any of these
three buckets. But there are actions other than a threshold
rejection—including sending a Form 211 to an operating
division—that do not constitute a § 7623(b) determination.
Other contextual clues drive this point home. All of the
award determinations in paragraphs (1)–(3) are for the WBO to
make in the first instance. The decision to commence an action,
however, rests in the Secretary’s unfettered discretion. See id.
§ 7623(b)(1) (“If the Secretary proceeds with any
administrative or judicial action . . . .”) (emphasis added);
Cohen v. Comm’r, 139 T.C. 299, 302 (2012), aff’d, 550 F.
App’x 10 (D.C. Cir. 2014) (holding that § 7623 does not
“confer authority to direct the Commissioner to commence an
administrative or judicial action”); Meidinger, 559 F. App’x at
6 (similarly acknowledging that the Tax Court cannot “direct
the Secretary to proceed with an administrative or judicial
action” or “compel the IRS to provide an explanation for its
decision” not to act, as the Tax Court may only “grant relief if
the IRS has initiated a proceeding against a taxpayer”
(quotations omitted)). It would be anomalous to interpret
§ 7623(b)(4) to confer jurisdiction of a category of cases
regarding which the same statute precludes any form of relief.
See Zuch, 2025 WL 1657419, at *5 (treating the Tax Court’s
inability to provide relief in a category of cases as indicative of
its lack of jurisdiction over those cases).
A more limited read, by contrast, accords with background
rules of administrative law. The whistleblower statute allows
private citizens to “bring [] matter[s] to the [IRS]’s attention

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19
and request it to file” an action. FTC v. Klesner, 280 U.S. 19,
25 (1929) (addressing a similar whistleblower statute). “But a
denial of his request is final,” id., because the IRS “alone is
empowered to develop that enforcement policy best calculated
to achieve the ends contemplated by Congress and to allocate
its available funds and personnel in such a way as to execute
its policy,” Moog Indus., Inc. v. FTC, 355 U.S. 411, 413
(1958).
Our read reflects the broader principle that the “decision
not to prosecute or enforce . . . is a decision generally
committed to an agency’s absolute discretion.” Heckler v.
Chaney, 470 U.S. 821, 831 (1985); see 5 U.S.C. § 701(a)(2)
(exempting from judicial review actions “committed to agency
discretion by law”); Inv. Co. Inst. v. Fed. Deposit Ins. Corp.,
728 F.2d 518, 526 (D.C. Cir. 1984) (“An agency’s decision to
refrain from an investigation or an enforcement action is
generally unreviewable . . . .”) (citation omitted); Krug v.
Comm’r, 120 A.F.T.R.2d (RIA) 2017-6480 (D.C. Cir. 2017)
(per curiam) (“The Commissioner has discretion whether to
initiate an action against a taxpayer; the courts cannot compel
the Commissioner to initiate such action . . . .”); Shands, 111
F.4th at 11 (Pillard, J., concurring) (explaining that “Li erected
no novel or formidable obstacle to the Tax Court’s jurisdiction”
but simply reflected that it has “jurisdiction over appeals of
award determinations—not exercises of non-enforcement
discretion”) (citation modified).
The IRS’s decision to deny a claim often rests on the
agency’s decision not to bring an enforcement proceeding
against a taxpayer. The statutory context and the broader
corpus juris thus counsel against reading § 7623(b) to
encompass an IRS determination not to proceed with a
whistleblower’s claim.

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20
Amicus’s other arguments fare no better. First, Amicus
presses the clear statement rule governing the treatment of a
statutory requirement as jurisdictional. But § 7623(b)(4)’s
jurisdictional grant includes an express textual reference to the
requirements of paragraphs (1)–(3), thus satisfying the clear
statement rule’s “high bar.” Harrow v. Dep’t of Def., 601 U.S.
480, 484 (2024) (quotation omitted). Moreover, the “Tax
Court is a court of limited jurisdiction” that may exercise only
the jurisdiction expressly conferred on it by the Congress.
Comm’r v. McCoy, 484 U.S. 3, 7 (1987) (per curiam); accord
Greene-Thapedi v. Comm’r, 126 T.C. 1, 6 (2006); Wilson v.
Comm’r, 805 F.3d 316, 319–20 (D.C. Cir. 2015). As such, its
jurisdiction is “strictly construed.” Bowen v. Massachusetts,
487 U.S. 879, 908 n.46 (1988).
Second, Amicus cites a pair of staff technical reports on
the 2006 amendments, which state that a whistleblower may
“appeal the amount or a denial of an award determination.”
Joint Committee on Taxation, Technical Explanation of H.R.
6408, The “Tax Relief and Health Care Act of 2006,” as
Introduced in the House on December 7, 2006 (JCX-50-06) 89
(Dec. 7, 2006); Joint Committee on Taxation, General
Explanation of Tax Legislation Enacted in the 109th Congress
(JCS-1-07) 745–46 (Jan. 17, 2007) (same). The latter report
is a post-enactment “Blue Book [] prepared by the staff of the
Joint Committee on Taxation as commentaries on [the] recently
passed tax law[].” United States v. Woods, 571 U.S. 31, 47
(2013). Such post-enactment reports are “not a legitimate tool
of statutory interpretation.” Id. at 48 (quotation omitted). As to
the earlier report, the quoted language may simply abbreviate
its description of the award denials contemplated by
§ 7623(b)(3).
TAF notes that the staff report’s language does not limit
itself to the narrow circumstance of a § 7623(b)(3) denial, but

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the parties’ debate over how to parse an isolated line plucked
from a committee report is precisely why courts have
abandoned their rote use of legislative history. “[L]egislative
history is not the law” and, insofar as it is ever a proper source
for divining congressional intent, it is only to resolve an
ambiguity, not to create one by “muddy[ing] clear statutory
language.” Azar v. Allina Health Servs., 587 U.S. 566, 579
(2019) (quotations omitted); see Int’l Bhd. of Elec. Workers,
Loc. Union No. 474 v. N.L.R.B., 814 F.2d 697, 700 (D.C. Cir.
1987) (“[C]ourts have no authority to enforce alleged
principles gleaned solely from legislative history that has no
statutory reference point.”).
Third, and finally, Amicus claims that we previously held
that “a letter that ‘notifies a whistleblower of the
Whistleblower Office’s final decision on his claim’ is a
‘determination’ under section 7623.” Amicus Br. 21 (internal
alterations omitted) (quoting Myers, 928 F.3d at 1033). But Li
took notice of this language from Myers and explained that
“[u]pon review . . . this statement is not a holding” and “does
not bind our decision” on § 7623(b)(4)’s scope. 22 F.4th at
1017–18. It likewise does not bind our decision here.
In sum, § 7623(b)(4) requires that the IRS first proceed
with an administrative or judicial action against a taxpayer
before the Tax Court can exercise jurisdiction. The agency’s
decision “not to pursue the [whistleblower’s] information,”
S.A.1, whether labeled a rejection or a denial, and whether
rendered by the WBO or an operating division, is emphatically
not a § 7623(b) action. Without such action, there is no
“determination regarding an award under paragraph (1), (2), or
(3),” and thus nothing that can be appealed. 26 U.S.C.
§ 7623(b)(4). This accords not only with the text in context but
with ordinary rules of prosecutorial discretion. As we
explained in Li, and reemphasize today, the IRS must first

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proceed “with an action against . . . [a] taxpayer” before the
Tax Court can exercise jurisdiction. 22 F.4th at 1017.
Rejecting a Form 211 at the threshold step means the IRS has
not taken such an action. The only difference between Li and
this case is that the WBO sent the Form 211 to an operating
division—which deemed the form conclusory—before the
WBO itself concluded that Meidinger’s Form 211 was “vague
and speculative” and should be rejected. Id. Nothing in the
text of § 7623(b)(4), Li’s holding or common sense suggests
that intra-agency transfers should lead to a different outcome.
* * *
Amicus’s various arguments all represent variations on the
same theme: limiting Li’s holding. If a whistleblower can show
that his form has advanced even one paper-shuffle more than
Li’s, Tax Court jurisdiction arises. But the phrase “threshold
review” appears nowhere in statutory text. Nor did Li rest on
so flimsy a foundation. At bottom, Amicus’s line-drawing
exposes its primary theory of this case: Li was wrongly decided
and should be overruled. That argument is addressed below.
B. We Decline Amicus’s Invitation to Revisit Li
Amicus argues in the alternative that Li was wrongly
decided and should be overruled. Amicus acknowledges that a
panel lacks the power to overturn Circuit precedent, and so asks
that we request an “en banc hearing and disposition of [this]
appeal in lieu of issuing a panel decision.” CADC, Policy
Statement on En Banc Endorsement of Panel Decisions 3 (Jan.
17, 1996).
It is a fundamental maxim that “we are . . . bound to follow
circuit precedent absent contrary authority from an en banc
court or the Supreme Court.” United States v. Carson, 455
F.3d 336, 384 n.43 (D.C. Cir. 2006) (per curiam). “[T]he rule

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of law demands that . . . [d]eparture from precedent” be the
exception, Randall v. Sorrell, 548 U.S. 230, 244 (2006)
(Breyer, J., plurality opinion) (quoting Arizona v. Rumsey, 467
U.S. 203, 212 (1984)), and only if there is “special
justification” beyond the belief “that the precedent was
wrongly decided,” Kimble v. Marvel Ent., LLC, 576 U.S. 446,
456 (2015). Stare decisis is at its zenith “[i]n matters of
statutory interpretation,” LaRue v. DeWolff, Boberg & Assocs.,
Inc., 552 U.S. 248, 260 (2008) (Roberts, C.J., concurring),
regarding which the “Congress remains free to alter what we
have done,” Halliburton Co. v. Erica P. John Fund, Inc., 573
U.S. 258, 274 (2014) (quotations omitted). This Court has
described the “range of circumstances” in which a “statutory
precedent” should be overturned as “narrow.” United States v.
Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012) (en banc). These
circumscribed circumstances include an “intervening
development of the law,” a “conceptual underpinning[ of] the
prior decision” has been “removed or weakened,” a precedent
has proved “detriment[al] to coherence and consistency in the
law” or an interpretation has been refuted persuasively by
“other circuits.” Id. (quotations removed). Even then, en banc
review serves only “two purposes: to ensure the consistency of
our caselaw and to resolve issues of exceptional importance.”
Id. at 517 (Henderson, J., concurring) (citing Fed. R. App. P.
35(a)).
Amicus does not come close to scaling this high wall. It
terms Li “unworkable” because “[n]either Li nor Lissack
delineates the precise line between an unreviewable threshold
rejection and a reviewable determination, leaving a large swath
of IRS actions on uncertain jurisdictional grounds.” Amicus
Br. 33 (citation modified). What Amicus decries as
imprecision is no more than judicial minimalism: “if it is not
necessary to decide more, it is necessary not to decide more.”
PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)

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(Roberts, J., concurring). Li and Lissack wisely chose not to
reach out and decide issues not before them. “[A]s is true with
so many legal standards for judging concrete cases,” the limits
must sometimes be “marked out through case-by-case
adjudication.” Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 503 (1984). Li was decided only three years ago.
Lissack is of even more recent vintage.
Amicus notes that a whistleblower is forced into a
“particularly opaque” process because the IRS may not provide
“the full administrative record detailing how the IRS treated [a]
claim.” Amicus Br. 34. If true, that provides a reason for the
IRS to improve its bookkeeping, not for this Court to revisit its
precedent. In any event, the jurisdictional line drawn by Li and
its progeny is not a particularly difficult one to trace. As
Shands explained, whether the IRS has proceeded with an
administrative or judicial action “does not turn on” the IRS’s
internal claims processing procedures but “on what the IRS
did.” 111 F.4th at 9. It is thus irrelevant “whether the IRS
labeled its decision a ‘rejection’ or a ‘denial’” or whether the
IRS disposed of a claim via the WBO or an operating division.
Id. Jurisdiction vests once the IRS chooses to act against a
taxpayer based on information alleged by a whistleblower.
That is a readily administrable line to follow. More
importantly, it is the line that the Congress chose to set.
C. Kennedy’s Petition
The foregoing analysis deprives the Tax Court—and in
turn, this Court—of jurisdiction of Meidinger’s claims and
Kennedy’s first two claims. As with Meidinger, Kennedy’s
claims one and two were forwarded to an IRS operating
division, which then took no administrative or judicial action
on either claim. Claim one languished in the agency because
the divisions could not resolve which, if any, should investigate

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the claim. The IRS took no action on claim two because a
cursory investigation revealed that the accused taxpayer was a
defunct corporation. Unlike with Meidinger, the IRS described
Kennedy’s final rejection letter as a “denial” rather than a
“rejection.” But as explained above, there is no jurisdictional
import to that difference in labels. There are no material facts
to differentiate Meidinger’s case from Kennedy’s first two
claims. The Tax Court thus lacked jurisdiction to entertain
these two claims.
As to Kennedy’s final claim, the IRS proceeded with an
administrative action: it examined (i.e., audited) the accused
taxpayer. This is precisely the conduct that Lissack found
sufficient to confer jurisdiction. See Lissack, 125 F.4th at 255
(“The fact that the IRS conducted an examination here suffices
to distinguish Lissack’s case from Li.”); see also Shands, 111
F.4th at 9 (suggesting that if a taxpayer “faced an audit that was
triggered by [a whistleblower’s] disclosure,” that could suffice
for jurisdiction). Because there was an administrative action
based on Kennedy’s information, the Tax Court properly
exercised jurisdiction of Kennedy’s third claim.
The Tax Court also properly rejected Kennedy’s third
claim on the merits. Following its audit, the IRS made no
change to the taxpayer’s return and collected no proceeds.
Kennedy alleges that “proceeds were collected” but the portion
of the record he cites is a pre-audit form of the taxpayer that
recounts nothing of the sort. Elsewhere, the record indicates
that no proceeds were collected, as the IRS asserted in its
internal correspondence, in the proceeding below and on
appeal, and as the Tax Court so held. Because the IRS
collected no proceeds against the accused taxpayer, the Tax
Court properly held that Kennedy was not entitled to any award
as a matter of law.

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* * *
For the foregoing reasons, we dismiss Meidinger’s appeal
for lack of jurisdiction and dismiss claims one and two of
Kennedy’s appeal for the same jurisdictional deficiency. We
affirm the Tax Court’s rejection of Kennedy’s third claim on
the merits.
So ordered.

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