                        T.C. Memo. 2011-90



                      UNITED STATES TAX COURT



               MURRAY S. FRIEDLAND, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13926-10W.             Filed April 25, 2011.



     Murray S. Friedland, pro se.

     John T. Kirsch, for respondent.



                        MEMORANDUM OPINION


     KROUPA, Judge:   This case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction, as

supplemented.   We are asked to decide two issues.   We must first

determine whether a letter respondent sent to petitioner denying

petitioner’s whistleblower claims constitutes a “determination”
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within the meaning of section 7623(b)(4).1   We find that the

letter was a determination and follow Cooper v. Commissioner, 135

T.C. 70 (2010).   We must next determine whether petitioner timely

filed a petition with this Court.   We find that he did not.    We

shall therefore grant respondent’s dismissal motion, as

supplemented.

                            Background

     The following information is stated for purposes of

resolving the pending motion.   Petitioner resided in New York

City, New York at the time he filed the petition.

     Petitioner, a CPA, submitted a Form 211, Application for

Award for Original Information (whistleblower claim), to

respondent’s Whistleblower Office (Whistleblower Office) in

September 2009 concerning alleged violations of the Internal

Revenue Code.   He alleged that Lawjoy Realty Corporation (Lawjoy)

and 601 West 149th Street, Inc. (West 149th), both C

corporations, failed to pay millions in Federal corporate income

taxes by impermissibly treating real property sales as stock

sales in a corporate liquidation.   He asserts that the structure

of the sales was a sham and solely motivated to evade income

taxes.   Petitioner appears to have been a shareholder of both

Lawjoy and West 149th.


     1
      All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure, unless otherwise indicated.
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     The Whistleblower Office denied petitioner’s whistleblower

claim in a letter issued November 13, 2009 (the first letter).

The first letter explained that the Whistleblower Office had

reviewed and evaluated petitioner’s whistleblower claim before

making its decision.   It stated that Federal disclosure and other

prevailing laws prevented the Whistleblower Office from

explaining why it was denying his claim.      Moreover, the first

letter gave general explanations for disallowing rewards.      It

explained that claims are denied if the claimant provided

insufficient information.    Similarly, the first letter explained

that claims are denied if the Internal Revenue Service already

had the information or the information provided did not cause an

investigation or result in the recovery of taxes, penalties or

fines.

     Petitioner was unsure why his claim was denied so he called

the Whistleblower Office to discuss the denial.      He also

gratuitously sent additional information to the Whistleblower

Office concerning the transaction.      The Whistleblower Office

subsequently mailed three additional letters to petitioner.        One

letter referenced the phone conversation with petitioner.      This

letter told petitioner that to challenge the Whistleblower

Office’s decision he could “write to the US Court of Claim (sic)

in Washington DC (sic).”    The two other letters from the

Whistleblower Office were duplicates confirming that petitioner’s
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additional information had been received and considered but

stating that the “determination remains the same despite the

information contained in * * * [petitioner’s] latest letter.”

     Petitioner thereafter filed a complaint in the United States

Court of Federal Claims (Claims Court) as directed.    He

challenged the Whistleblower Office’s decision.    The Claims Court

dismissed petitioner’s complaint for lack of jurisdiction on May

26, 2010.

     Petitioner then filed a petition in this Court challenging

respondent’s denial of the whistleblower claim.    He did not file

the petition until June 18, 2010, which was 217 days after he

received the first letter.   As mentioned previously, respondent

filed a motion to dismiss for lack of jurisdiction.    He argues

principally that no determination notice had been issued to

petitioner to confer on us jurisdiction.    Respondent argues,

alternatively, that if a determination notice was issued,

petitioner failed to file a petition with the Court within the

required 30-day period.

                             Discussion

     We are asked to decide whether respondent’s letter denying

petitioner’s whistleblower claim constitutes a “determination”

within the meaning of section 7623(b)(4).    We are also asked to

decide whether petitioner timely filed his petition with this

Court.
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      We begin with the Tax Court’s jurisdiction.   The Tax Court

is a court of limited jurisdiction and may exercise its

jurisdiction only to the extent authorized by Congress.     Judge v.

Commissioner, 88 T.C. 1175, 1180-1181 (1987); Naftel v.

Commissioner, 85 T.C. 527, 529 (1985).     The Tax Court is without

authority to enlarge upon that statutory grant.     See Phillips

Petroleum Co. v. Commissioner, 92 T.C. 885, 888 (1989).     We

nevertheless have jurisdiction to determine whether we have

jurisdiction.   Hambrick v. Commissioner, 118 T.C. 348 (2002); Pyo

v. Commissioner, 83 T.C. 626, 632 (1984); Kluger v. Commissioner,

83 T.C. 309, 314 (1984).    We turn now to an overview of our

jurisdiction regarding whistleblower claims.

I.   Determination Notice

      The Court’s jurisdiction under section 7623(b)(4) depends

upon a determination regarding an award and a timely petition.

Rule 340(b); Cooper v. Commissioner, supra.     Any determination

regarding an award from the Whistleblower Office may be appealed

to the Tax Court.   Sec. 7623(b)(4).    Respondent argues that there

was no determination because petitioner’s information was not

used to detect underpayments of tax or to collect proceeds.      See

Internal Revenue Manual pt. 25.2.2 (Dec. 30, 2008).    Respondent

argues that there can be a determination for jurisdictional

purposes only if the Whistleblower Office undertakes an
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administrative or judicial action and thereafter “determines” to

make an award.    See id.

      We recently decided the issue of whether a letter from the

Whistleblower Office to a taxpayer was a “determination” under

section 7623(b) where the Whistleblower Office rejected a

taxpayer’s claim for an award.    See Cooper v. Commissioner, 135

T.C. 70 (2010).   We held that the letter constituted a

determination because it was a final administrative decision

regarding the taxpayer’s whistleblower claims.    We stand by our

holding in Cooper.

      Here, petitioner received four letters from the

Whistleblower Office.    The first letter denied petitioner’s

whistleblower claim.    The subsequent three letters merely

reaffirmed the initial determination in the first letter.

Moreover, the Whistleblower Office stated in a letter to

petitioner that he would have to appeal the determination through

the court system, not the Whistleblower Office.    Accordingly, we

find that respondent’s first letter to petitioner constituted a

determination within the meaning of section 7623(b)(4).    We

therefore have jurisdiction to review respondent’s denial of

petitioner’s whistleblower claim.

II.   Timeliness of Petitioner’s Petition

      We next consider whether petitioner timely filed the

petition.   To invoke the Court’s jurisdiction, an individual must
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appeal the amount or denial of an award determination to this

Court within 30 days of such a determination by the Whistleblower

Office.     Sec. 7623(b)(4).   Failure to file within the 30 days

deprives the Court of subject matter jurisdiction.      The

Whistleblower Office issued petitioner its determination on

November 13, 2009.     Petitioner thereafter had 30 days to file an

appeal with this Court, which he failed to do.      Petitioner

eventually filed a petition on June 18, 2010, that is, 217 days

after the first letter was issued.

     We recognize that petitioner may have relied on the

erroneous advice of the Whistleblower Office in filing his

initial appeal with the Claims Court.      We, however, are limited

in the relief we can provide.      This Court’s jurisdiction is

strictly statutory, and estoppel cannot create jurisdiction where

none exists.     See Lumber Prods., Inc. v. Commissioner, T.C. Memo.

1992-728.    We sympathize with petitioner.   We cannot expand our

jurisdiction, however, even where the Commissioner provided bad

advice.   See Schoenfeld v. Commissioner, T.C. Memo. 1993-303.

Accordingly, we find that petitioner failed to timely file a

petition with this Court.
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     For the foregoing reasons, we shall grant respondent’s

motion to dismiss.


                                 An appropriate order of dismisal

                             for lack of jurisdiction will be

                             entered.
