In re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2024 Decided September 9, 2025
Reissued September 24, 2025
No. 24-1001
IN RE: SEALED CASE
On Appeal from the United States Tax Court
Jason D. Wright argued the cause and filed the briefs for
appellant.
Brian C. Wille and Usman Mohammad were on the brief
for amicus curiae Whistleblower 11099-13W in support of
appellant.
Dean Zerbe was on the brief for amicus curiae Zerbe,
Miller, Fingeret, Frank & Jadav, LLP in support of appellant.
Marie E. Wicks, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was Bruce
R. Ellisen.
Before: SRINIVASAN, Chief Judge, HENDERSON and
GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.

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GARCIA, Circuit Judge: Appellant is a whistleblower who
alerted the IRS that several prominent Wall Street firms were
helping their clients avoid paying certain taxes. The resulting
IRS investigations recovered hundreds of millions of dollars in
unpaid taxes. By statute, Appellant was entitled to between
15% and 30% of the proceeds collected from each firm whose
misconduct he helped expose. The IRS Whistleblower Office
issued him five such awards, tied to the IRS’s recovery from
each firm. For four of those awards, the Office allotted him the
maximum 30% recovery. For one, however, it awarded
Appellant only 22%, yielding him millions less than a 30%
award would have. The Office explained the reduction by
claiming that, although the IRS personnel investigating similar
misconduct by other firms owed their knowledge of these
complex and novel tax violations to Appellant, the team
investigating this particular firm had discovered those
violations on its own.
Because we agree with Appellant that the Whistleblower
Office’s factual finding is not supported by the record, we
vacate the Tax Court’s decision affirming the award and
remand for further proceedings.
I
A
The IRS relies on whistleblowers to help uncover tax
evasion. See 26 U.S.C. § 7623(a). To incentivize disclosure,
Section 7623(b)(1) of the Internal Revenue Code entitles
whistleblowers to a share of any tax proceeds that their
cooperation enables the government to recover. If the IRS
moves forward “with any administrative or judicial action . . .
based on” a whistleblower’s information, the whistleblower
“shall . . . receive as an award at least 15 percent but not more
than 30 percent of the proceeds collected.” Id. § 7623(b)(1).
The Whistleblower Office, a division within the IRS,

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administers the award program. See id.; see also Tax Relief
and Health Care Act of 2006, Pub. L. No. 109-432, Div. A,
Title IV, § 406(b), 120 Stat. 2922, 2959–60.
To request an award, a whistleblower must submit an
Application for Award for Original Information (or Form 211)
to the Whistleblower Office. See 26 C.F.R. § 301.7623-
1(c)(2). Form 211 asks the whistleblower to identify the
taxpayer whose misconduct she helped uncover and describe
“how the information on which the [award request] is based
came to [her] attention.” Id. For meritorious requests,
Section 7623(b)(1) requires the Whistleblower Office to
determine the size of the award—that is, where in the range of
15% to 30% of recovered proceeds the award should fall—by
evaluating “the extent to which the individual substantially
contributed to [the enforcement] action.”
Once the award is finalized, a whistleblower can appeal to
the Tax Court. See 26 U.S.C. § 7623(b)(4). A whistleblower
who is still dissatisfied may then seek review from a United
States Court of Appeals. See id. § 7482(a)(1).
B
Appellant worked for a large investment banking firm
until 2005. During his time there, he discovered that the firm
had been helping “offshore hedge funds to avoid paying taxes
on dividends received from U.S. corporations.” Suppl. App.
103. For example, the firm would hold stock for foreign clients
and pay them the equivalent of the stock’s total returns,
bypassing a requirement to withhold tax on dividends that
applies when offshore entities hold stock themselves.
Appellant soon learned that several other Wall Street firms
were engaging in similar practices. Armed with that
knowledge, he resigned from his post in June 2005, taking

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hundreds (if not thousands) of pages of internal firm documents
with him.
That same month, Appellant contacted the IRS and began
meeting regularly with investigators. He educated them about
how the transactions worked and identified which other firms
were offering similar services. Between July 2005 and March
2006, at an IRS official’s suggestion, he filed four Forms 211—
one for each firm whose tax noncompliance he brought to
investigators’ attention. One of the forms concerned a taxpayer
we will call “the Company.”
Appellant’s final meeting with investigators occurred in
March 2006. Two months later, unbeknownst to Appellant,
officials from across the IRS convened to discuss the
information he had shared with them.
After hearing nothing from the IRS for several months,
Appellant took his story to a reporter from The Wall Street
Journal. In 2007, the reporter published two articles about
offshore tax abuse based on Appellant’s information. One of
the articles mentioned the Company.
The reporting generated interest among members of the
U.S. Senate Permanent Subcommittee on Investigations, which
recruited Appellant to assist in an investigation into the
dividend withholding issues. In September 2008, with
Appellant’s help, the Subcommittee held a public hearing and
published a report with its findings. The report detailed
misconduct by the firms that Appellant had identified in his
Forms 211 from 2005 and 2006, as well as misconduct by
several additional firms.
Appellant then filed a new batch of Forms 211 covering
all firms mentioned in the Subcommittee’s report. Included in
his 2008 submission was a second Form 211 describing his role
in calling attention to the Company’s tax noncompliance.

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By this point, an IRS field team had already opened an
audit into the Company for the relevant tax years. In 2009, that
team gained access to materials that Appellant had supplied the
Subcommittee. The field team used those materials “to
develop specific document requests and other inquiries,” and
the information it received in response enabled it to uncover
the full extent of the Company’s tax noncompliance. App. 36.
In 2014, the IRS entered two closing agreements with the
Company, requiring it to pay a total of $88 million. The IRS
also recovered unpaid tax proceeds from several other firms
that had engaged in similar practices.
Between 2014 and 2019, the Whistleblower Office issued
Appellant five awards to recognize his contributions. For four
of those awards, the Whistleblower Office awarded him 30%
of the recovered tax proceeds, explaining that he was
“responsible for the identification of the taxpayer[] [and] the
[IRS’s] understanding of the transaction[s].” App. 222; see
also App. 202–03; App. 234; App. 241.
Things played out differently for Appellant’s award
request concerning the Company. In 2017, the analyst assigned
to evaluate that request proposed allotting Appellant only 22%
of the collected proceeds. The analyst’s supervisor declined to
approve the recommendation, instructing him to elaborate on
his “reasons for using [a] different [percentage] . . . than was
used in prior award recommendations on other claims.” Suppl.
App. 217.
The analyst then contacted the IRS field team for more
specifics about what had prompted its audit into the Company
and how it had used Appellant’s information. We describe the
details of that exchange below. See infra at 8–10. For now, it
suffices to say that the analyst retained his 22%
recommendation. He explained that, unlike “in the other
cases,” this field team “was already pursuing the withholding

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issues against [the Company] prior to receiving the . . .
whistleblower information.” Suppl. App. 106 n.4. The
Whistleblower Office approved the 22% recommendation.
Appellant sought the Tax Court’s review. As relevant
here, he argued that the record did not justify the inconsistency
between the 22% award and the prior 30% awards. The Tax
Court reviewed the Whistleblower Office’s determination for
abuse of discretion, rejected Appellant’s challenge, and granted
summary judgment to the government. Whistleblower 8391-
18W v. Comm’r of Internal Revenue, 161 T.C. 58, 75 (2023).
This appeal followed.
II
We review the Tax Court’s grant of summary judgment to
the government de novo. See Byers v. Comm’r of Internal
Revenue, 740 F.3d 668, 675 (D.C. Cir. 2014). The parties,
however, disagree on the underlying standard of review that the
Tax Court—and, by extension, this court on appeal—should
apply to the Whistleblower Office’s award determinations.
The government defends the Tax Court’s abuse of discretion
standard; Appellant argues that Section 7623 requires the Tax
Court to review the Whistleblower Office’s decisions de novo.
We need not resolve that dispute. As explained below, the
Whistleblower Office’s award cannot survive even the more
deferential abuse of discretion standard. Cf. Nanko Shipping,
USA v. Alcoa, Inc., 850 F.3d 461, 465 (D.C. Cir. 2017).1
1 Appellant supplements his standard-of-review argument by
urging that the Whistleblower Office’s resolution of his award
request would violate the Appointments Clause unless the Tax
Court’s review is de novo. Appellant raises that issue only in service
of his standard-of-review argument, and not as an independent

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We therefore assume without deciding that the
Whistleblower Office’s award determinations are subject to
abuse of discretion review. Under that standard, the Tax Court
defers to the Whistleblower Office’s factual findings unless
they are “clearly erroneous.” Kasper v. Comm’r of Internal
Revenue, 150 T.C. 8, 23 (2018) (citation modified). “A finding
is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948).
III
The Whistleblower Office based the 22% award
determination on its finding that this field team discovered the
Company’s withholding issues on its own. On this record, that
finding was clearly erroneous.
Remember the context set out above: Appellant worked
extensively to bring widespread and problematic practices to
the IRS’s attention. He met with the IRS repeatedly for almost
a year in 2005 and 2006 and submitted Forms 211 in 2005,
2006, and 2008. He then worked with a journalist to make the
withholding issues public knowledge in 2007 and contributed
to the Senate Subcommittee investigation. The Whistleblower
Office in turn awarded Appellant 30% of the proceeds
recovered from four other firms engaged in similar practices—
the maximum award available under Section 7623(b)(1). For
one of those awards, the Whistleblower Office even stated
explicitly that Appellant had “identified an issue or transaction
of a type previously unknown to the IRS.” App. 202.
constitutional challenge. We accordingly need not resolve it for the
reasons above.

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Now turn to the Office’s sole justification for giving
Appellant only a 22% award here: Unlike “in the other cases,”
the Office said, the field team auditing the Company “was
already pursuing the withholding issues against [the Company]
prior to receiving the . . . whistleblower information.” Suppl.
App. 106 n.4. It would have been quite an achievement for this
field team to have uncovered these novel and complex
transactions without Appellant’s assistance, especially when
no one else in the IRS had managed to do so. We would
therefore expect some concrete, affirmative indication to
support the Whistleblower Office’s theory.
Indeed, the Whistleblower Office recognized the need for
such an explanation. When the responsible analyst submitted
his original award proposal, his supervisor declined to approve
it because the proposal did not sufficiently explain why the
analyst had recommended a lower percentage than in the prior
awards. See Suppl. App. 217. The analyst then asked the field
team for more details.
What the analyst heard back provided no discernible
factual basis for the inconsistent treatment. The revised award
memorandum rested primarily on a set of email exchanges
between the analyst and the field team. The analyst began by
asking the team whether it had “start[ed] the exam”—that is,
the audit of the Company for the relevant tax years—“based on
[Appellant’s] pre-2008 submissions [or] contacts with the IRS
about the withholding issues.” Suppl. App. 227. The field
team responded that it “did not start the exam based on
[Appellant’s] pre-2008 submissions [or] contacts with the IRS
about the withholding issues.” Suppl. App. 224. The analyst
followed up: “If it wasn’t the [Subcommittee]/whistleblower
information that initiated the exams, then what was it?” Suppl.
App. 219. The field team responded simply: “This was a

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subsequent year examination.” Id.2 The award summarized
that exchange as follows: “The field team has specifically
stated [that Appellant’s] pre-2008 contacts with the IRS
regarding the . . . withholding issues was not the reason [it]
began pursuing these issues.” Suppl. App. 107.
The field team said no such thing. The field team stated
that Appellant’s information had not prompted its “exam,”
which other messages clarified was a “subsequent year
examination” involving multiple matters unrelated to the
transactions Appellant had identified. Suppl. App. 219; Suppl.
App. 224. The field team’s statements thus suggest at most that
the IRS began auditing the company for the tax years at issue
for a reason other than Appellant’s information. The analyst,
however, never asked the field team how or why it started
investigating the specific dividend tax withholding issues
Appellant had exposed. And the field team said nothing that
would provide an answer. The award improperly transmuted a
statement that Appellant’s information did not lead to the
team’s audit writ large into a far more specific claim that
Appellant’s information did not lead to the team’s investigation
of these exact withholding issues.3
2 Curiously, neither party explains precisely what a “subsequent
year examination” is. The record suggests that the IRS initiates such
an audit when it expects to find issues like those identified in an
examination of prior tax years. See Suppl. App. 254 n.8.
3 In fact, the person responding on behalf of the field team was
clear that he was not well-positioned to answer specific questions
about events that occurred approximately a decade earlier. The lead
IRS examiner on the Company audit at issue had recently “retired.”
Suppl. App. 219–20, 224. Worse, the remaining employee lacked
access to the “Case Activity Records” and other materials from the

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The analyst’s revised award memorandum also cited
certain documents generated by the field team in 2008 as proof
that the team had started examining the withholding issues
before it had access to the Senate Subcommittee materials in
early 2009. One document, for example, describes a
teleconference in April 2008 “regarding the TRS issue,” an
apparent reference to one of the problematic schemes
Appellant had identified. Suppl. App. 197. But by that point,
Appellant had already met with IRS officials extensively and
worked with a journalist who published two detailed articles
about the tax practices at issue. Those 2008 records could
perhaps be consistent with the analyst’s theory that this field
team discovered the Company’s dividend withholding issues
independently of Appellant’s extensive contributions. But they
are equally consistent with Appellant’s contrary view that the
field team became aware of those issues only because of his
earlier efforts. The records do not speak to the key question of
how this field team began investigating the specific practices
Appellant identified.
At bottom, the record contains no indication that this field
team discovered the Company’s withholding issues on its own
when the IRS officials who investigated other taxpayers’
similar misconduct all owed their “understanding of the
transaction[s]” to Appellant. App. 222; see also App. 202–03;
App. 234; App. 241. Because the Whistleblower Office’s
award rested on the clearly erroneous factual finding that the
team had done so, the award cannot stand.4 We therefore need
relevant period because they “were kept by [the] retired employee.”
Suppl. App. 220.
4 During oral argument, the government attempted to bolster the
Whistleblower Office’s reasoning by pointing to a timeline created
by an IRS official in 2016 that summarizes Appellant’s contacts with

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not consider Appellant’s remaining challenges to the
Whistleblower Office’s analysis.
IV
The Tax Court’s grant of summary judgment to the
government is vacated, and we remand this case for further
proceedings consistent with this opinion.
So ordered.
investigators. The timeline states that, in 2009, “12 audit teams ha[d]
access to the [Senate Subcommittee] documents[,] but none of the
earlier [submissions by Appellant] were sent to the field.” App. 186.
The analyst did not reference the timeline in his revised award
memorandum in 2017, the Tax Court did not rely on it, and the
government’s brief on appeal cites it only once—and in the brief’s
background section, no less. We therefore decline to consider it.

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