Whistleblower claim does not die with the whistleblower.

• Author: Beavers, James A.

An individual's whistleblower claims survive the death of the individual, and the estate of a permanently nonfunctional individual can be substituted for that individual in a Tax Court case where the court is asked to review the IRS's denial of the deceased individual's whistleblower claim.

Background

Joseph A. Insinga submitted claims to the IRS Whistleblower Office (WBO) for whistleblower awards related to eight target taxpayers and 94 transactions. The WBO denied the claims, and, in response, Insinga filed a petition (under Sec. 7623(b)(4)) in the Tax Court requesting the court review the IRS's adverse determination regarding his claims for awards. After substantial pretrial wrangling, Insinga and the IRS stipulated that only his claims regarding two of the entities remained at issue, and Insinga filed an amended petition that asserted only those two claims.

With his Tax Court case still pending, Insinga died on March 22, 2021. Insinga's estate filed a motion for substitution in June 2021, asserting the estate should be substituted as petitioner for Insinga in the case (and that the case caption be accordingly changed to reflect the substitution).

The Tax Court's decision

The Tax Court held that its jurisdiction over a petition filed pursuant to Sec. 7623(b)(4) is not extinguished by the death of the whistleblower. Thus, Insinga's claim survived his death, and his estate had standing to be substituted for Insinga as the petitioner in his Tax Court case.

Survival of the claim: When a federal statute does not specifically address survival rights, federal common law provides the general rule that rights of action under federal statutes survive a plaintiff's death if the statute is remedial, not penal. Generally, a three-factor test is used to ascertain whether a statute is remedial or penal, examining: (1) whether the purpose of the statute was to redress individual wrongs or more general wrongs to the public; (2) whether recovery under the statute runs to the harmed individual or to the public; and (3) whether the recovery authorized by the statute is wholly disproportionate to the harm suffered.

The Tax Court noted that no court has decided whether Sec. 7623(b) has a remedial or penal purpose. However, it found that claims under the False Claims Act (FCA) shed light on the treatment because qui tam actions are analogous to whistleblower claims.

In NEC Corp., 11 F.3d 136 (11th Cir. 1993), the court held that a decedent-plaintiff's claim...