T.C. Memo. 2003-284
UNITED STATES TAX COURT
ESTATE OF DORA HALDER, DECEASED,
ANITA HALDER MACDOUGALL, EXECUTRIX, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent*
Docket No. 5018-01. Filed October 3, 2003.
Robert D. Whoriskey, for petitioner.
Monica E. Koch, for respondent.
SUPPLEMENTAL MEMORANDUM OPINION
VASQUEZ, Judge: This case is before the Court on the
estate’s motion for reconsideration and motion for interlocutory
order under Rule 193(a).1
*
On Mar. 25, 2003, the Court issued its opinion, T.C.
Memo. 2003-84, which we incorporate herein.
1
Unless otherwise indicated, all section references are to
(continued...)
- 2 -
On March 25, 2003, the Court filed its Memorandum Opinion in
this case, Estate of Halder v. Commissioner, T.C. Memo. 2003-84,
which concluded that there was no meeting of the minds between
the parties, and therefore no basis of settlement was reached by
the parties. Also on March 25, 2003, the Court denied the
estate’s motion for entry of decision.
On May 8, 2003, the estate filed a motion for leave to file
motion for reconsideration and lodged a motion for
reconsideration. Also on May 8, 2003, the estate filed a motion
for interlocutory order under Rule 193(a).
On May 23, 2003, the estate filed a memorandum in support of
the estate’s motions for reconsideration and an interlocutory
order. Also on May 23, 2003, we granted the estate’s motion for
leave to file motion for reconsideration (and the motion for
reconsideration was filed), and ordered respondent to file, on or
before June 13, 2003, a response to the estate’s motion for
reconsideration and motion for an interlocutory order.
On June 16, 2003, respondent filed respondent’s response to
the estate’s motion for reconsideration and a notice of objection
which objected to the granting of the estate’s motion for an
interlocutory order under Rule 193(a).
1
(...continued)
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
- 3 -
Reconsideration
Reconsideration under Rule 161 permits us to correct
manifest errors of fact or law, or to allow newly discovered
evidence to be introduced that could not have been introduced
before the filing of an opinion, even if the moving party had
exercised due diligence. See Rothwell Cotton Co. v. Rosenthal &
Co., 827 F.2d 246, 251, amended per order 835 F.2d 710 (7th Cir.
1987); see also Traum v. Commissioner, 237 F.2d 277, 281 (7th
Cir. 1956), affg. T.C. Memo. 1955-127. The granting of a motion
for reconsideration rests within the discretion of the Court, and
we shall not grant a motion for reconsideration unless the party
seeking reconsideration shows unusual circumstances or
substantial error. See Alexander v. Commissioner, 95 T.C. 467,
469 (1990), affd. without published opinion sub nom. Stell v.
Commissioner, 999 F.2d 544 (9th Cir. 1993); Estate of Halas v.
Commissioner, 94 T.C. 570, 573 (1990); Vaughn v. Commissioner, 87
T.C. 164, 166-167 (1986); Estate of Bailly v. Commissioner, 81
T.C. 949, 951 (1983); Haft Trust v. Commissioner, 62 T.C. 145,
147 (1974), affd. on this issue 510 F.2d 43, 45 n.1 (1st Cir.
1975). Reconsideration is not the appropriate forum for
rehashing previously rejected legal arguments or tendering new
legal theories to reach the end result desired by the moving
party. See Estate of Quick v. Commissioner, 110 T.C. 440, 441-
- 4 -
442, supplementing 110 T.C. 172 (1998); Stoody v. Commissioner,
67 T.C. 643, 644 (1977), supplementing 66 T.C. 710 (1976).
The estate contends that the factual record in the
Memorandum Opinion is incomplete in its essential elements.
Essentially, the estate disagrees with the Court’s conclusions
about the facts of this case. In our Memorandum Opinion, we
considered and addressed the estate’s arguments, the testimony of
all of the witnesses, and all of the documentary evidence. The
estate has not demonstrated any manifest error of fact.
Furthermore, on the basis of the record, the estate’s
version of the “facts” misconstrues the facts of this case,
ignores certain facts, or takes them out of their context by
isolating events and looking at them in a vacuum. For example,
the estate claims that shortly after respondent offered, via
telephone, to settle the case by assigning a fair market value of
$1,124,410 to the limited partnership interest in issue,
respondent faxed a new “offer” for almost $125,000 less even
though the Appeals officer stated in the phone conversation with
the estate’s accountant that the fax would contain the Appeals
officer’s calculations regarding how he arrived at a fair market
value of $1,124,410. The estate’s contention that the estate’s
representatives believed the $1,000,000 figure contained in the
January 14, 2002, fax was an offer from respondent is contrary to
the facts of this case.
- 5 -
Additionally, the estate has not shown that we made a
manifest error of law. The estate argues that our reliance on
Gardner v. Commissioner, 75 T.C. 475 (1980), for the proposition
that the settlement was not signed by an IRS official authorized
to approve it was improper because Gardner was overruled by
Dorchester Indus., Inc. v. Commissioner, 108 T.C. 320 (1997),
affd. 208 F.3d 205 (3d Cir. 2000), and Stamm Intl. Corp. v.
Commissioner, 90 T.C. 315 (1988). The estate is wrong.
Neither Dorchester nor Stamm dealt with the authority of an
Appeals officer to enter into a settlement agreement.
Furthermore, our citation to the rule of Gardner was merely an
alternative ground for holding against the estate. It does not
change the fact that there was no meeting of the minds and that
the estate cannot claim to have accepted what respondent did not
offer.2
The estate’s legal arguments are merely the rehashing of
previously rejected legal arguments or the tendering of new legal
theories to reach the end result desired by the estate. This is
inappropriate. See Estate of Quick v. Commissioner, supra;
Stoody v. Commissioner, supra.
2
Additionally, if a document contains an incorrect figure
due to a clerical error (such as writing down the wrong number)
and fails to reflect accurately the terms of an agreement, we
shall not enforce the document as written and shall allow a party
to correct the error. See Holland v. Commissioner, T.C. Memo.
1992-691.
- 6 -
Nor has the estate offered newly discovered evidence, or
shown that there were unusual circumstances which warrant relief.
The estate has merely restated the proposed facts and argument
set forth in the opening brief and reply brief that we rejected.
Interlocutory Appeal
This Court may certify an interlocutory order for an
immediate appeal if we conclude that (1) a controlling question
of law is involved, (2) substantial grounds for a difference of
opinion are present, and (3) an immediate appeal may materially
advance the ultimate termination of the litigation. Sec.
7482(a)(2); Gen. Signal Corp. v. Commissioner, 104 T.C. 248
(1995), affd. on other grounds 142 F.3d 546 (2d Cir. 1998);
Kovens v. Commissioner, 91 T.C. 74 (1988), affd. without
published opinion 933 F.2d 1021 (11th Cir. 1991). If any one of
the three requirements is not satisfied, the estate’s request for
certification must be denied. Gen. Signal Corp. v. Commissioner,
supra; Kovens v. Commissioner, supra. Additionally, we note that
certification of interlocutory orders is granted only in
exceptional circumstances. Gen. Signal Corp. v. Commissioner,
supra; Kovens v. Commissioner, supra.
The U.S. Court of Appeals for the Second Circuit, to which
an appeal of this case would lie, has stated that only
exceptional circumstances justify a departure from the basic
policy of postponing appellate review until after the entry of a
- 7 -
final judgment. Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d
21, 24-25 (2d Cir. 1990). Additionally, the U.S. Court of
Appeals for the Second Circuit has urged the courts to exercise
great care in certifying interlocutory orders. Westwood Pharms.,
Inc. v. Natl. Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir.
1992).
In our Memorandum Opinion, we noted that the determination
of whether there was a meeting of the minds sufficient to
constitute a contract is a question of fact. Accordingly, a
controlling question of law is not involved. See Kovens v.
Commissioner, supra at 79-80.
The estate contends that “this case was unique and unlike
any other case the Court has considered on the issue whether an
otherwise agreed basis of settlement should be enforced.”
Assuming arguendo this is true, it strains credibility to then
suggest that substantial grounds for difference of opinion are
present.
The estate also argues that if the estate’s motion for entry
of decision were granted, it would terminate the litigation in
this case. The estate, however, ignores the possibility that on
appeal the U.S. Court of Appeals for the Second Circuit also may
rule against the estate (i.e., that there was no settlement). If
we were affirmed, this case would not terminate at that point
because the fair market value of the limited partnership interest
- 8 -
would still be in issue. Accordingly, we conclude that an
immediate appeal will not materially advance the ultimate
termination of the litigation.
After consideration of all of the estate’s arguments and
based upon the record before us, we are not persuaded that our
decision to deny the estate’s motion for entry of decision falls
within the rare category of cases contemplated by Congress when
enacting section 7482(a)(2), and conclude that the requirements
of an interlocutory appeal have not been met.
Conclusion
We note that if the January 14, 2002, fax had contained a
figure higher than the $1,124,410 offered by respondent on the
telephone shortly before the January 14, 2002, fax was sent, it
is likely that the estate’s counsel or accountant would have
immediately contacted respondent and sought to correct the
figure. Instead, the estate’s counsel advised the estate’s
accountant to take undue advantage of the situation.
Accordingly, we shall deny the estate’s motion for
reconsideration and deny the estate’s motion for interlocutory
order under Rule 193(a). To reflect the foregoing,
An appropriate order
will be issued.