Sihota v. Internal Revenue Service, No. 17-2252 (Fed. Cir. 2018)Annotate this Case
Sihota worked for the IRS for over 25 years. A 2011 IRS audit determined that, in 2003, Sihota reported a loss based on her purported ownership of NKRS, which was actually owned by Sihota’s son. The parties reached a settlement: Sihota acknowledged she had “acted negligently … resulting in an underpayment of ... $5341.00.” Sihota paid the assessment and penalty. The IRS terminated her employment, stating that Sihota was charged with either violating 5 CFR 2635.809 or 26 U.S.C. 7804, which requires the IRS to terminate any employee who willfully understates their federal tax liability, “unless such understatement is due to reasonable cause and not willful neglect.” The Union invoked arbitration. A hearing was held four years after the IRS contacted the Union about scheduling. The arbitrator concluded that inclusion of the loss on her return was not willful neglect, reinstated Sihota’s employment, imposed a 10-day suspension, and held that Sihota was not entitled to back pay, citing laches and the scheduling delay. The Federal Circuit vacated and remanded, stating that it could not discern which charges were properly considered or would support the suspension. If the only charge before the arbitrator was under the statute, the arbitrator could not impose any penalty. While the Union’s delay is inexplicable and might have barred the claim if the IRS could show prejudice, after allowing Sihota’s claim to proceed, the arbitrator cannot rely on laches to reduce her back pay.