T.C. Memo. 2004-14
UNITED STATES TAX COURT
ALFRED J. MARTIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13419-02L. Filed January 20, 2004.
Patricia Tucker, for petitioner.
Anne W. Durning and James E. Cannon, for respondent.
SUPPLEMENTAL MEMORANDUM OPINION
MARVEL, Judge: On November 7, 2003, pursuant to Rule 161,
petitioner filed a timely Motion for Reconsideration of this
Court’s Memorandum Opinion in Martin v. Commissioner, T.C. Memo.
2003-288 (Martin II).1
1
All section references are to the Internal Revenue Code in
effect at all relevant times, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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In Martin II, we affirmed respondent’s determination to
proceed with collection by levy, and, as relevant to our
discussion herein, we concluded that although the petition filed
on petitioner’s behalf in Martin v. Commissioner, T.C. Memo.
2000-187 (Martin I), affd. on other grounds 38 Fed. Appx. 980
(4th Cir. 2002), was unauthorized and petitioner’s copy of the
joint notice of deficiency was not attached, the petition placed
a “proceeding in respect of the deficiency” on this Court’s
docket and suspended the statutory limitations period for
assessment (the limitations period).
In his motion, petitioner alleges that our opinion in Martin
II “made material factual errors in conflict with the facts found
in [Martin I]” and “made material errors in analysis of the cases
relied upon by both parties”. This Supplemental Memorandum
Opinion addresses those allegations.
Background
We adopt the findings of fact in our prior Memorandum
Opinion, Martin II. For convenience and clarity, we repeat below
the facts necessary for the disposition of this motion.
On April 15, 1981, petitioner and his wife at the time,
Amilu, filed a joint Federal income tax return for 1980 (the 1980
joint return). On June 7, 1988, respondent issued notices of
deficiency to petitioner and Amilu with respect to the 1980 joint
return. On September 6, 1988, Jeffrey Berg, an attorney
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representing limited partners in tax shelter litigation, filed a
petition with this Court on behalf of petitioner and Amilu
seeking a redetermination of their 1980 deficiency.2 Mr. Berg
attached to the petition a copy of Amilu’s notice. In Martin I,
we granted petitioner’s request to dismiss him from the 1980
deficiency case for lack of jurisdiction, concluding that
petitioner did not file, authorize the filing of, or ratify the
filing of the petition Mr. Berg signed and submitted.
On November 20, 2000, respondent assessed petitioner’s share
of the 1980 joint deficiency and sent petitioner a notice of
balance due. On November 29, 2001, respondent issued a Final
Notice–-Notice of Intent to Levy and Notice of Your Right to a
Hearing. On December 14, 2001, petitioner timely submitted Form
12153, Request for a Collection Due Process Hearing, requesting a
hearing under section 6330.
At the section 6330 hearing, petitioner’s counsel argued
that the limitations period had expired before respondent
assessed petitioner’s 1980 income tax liability. Petitioner’s
counsel raised no other issues, although counsel expressed
interest in discussing an installment agreement if the Appeals
Officer rejected his limitations argument.
2
On Aug. 4, 1986, at petitioner’s request, Mr. Berg had
filed a petition for redetermination of petitioner’s 1981 and
1982 income tax deficiencies.
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On July 22, 2002, the Appeals Office issued a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 (notice of determination). In the notice of
determination, Appeals Officer Mares determined, among other
things, that (1) the limitations period had not expired prior to
respondent’s assessment of petitioner’s 1980 income tax
liability, and (2) collection by levy was appropriate under the
circumstances.
Discussion
Reconsideration under Rule 161 is intended to correct
substantial errors of fact or law and allow the introduction of
newly discovered evidence that the moving party could not have
introduced, by the exercise of due diligence, in the prior
proceeding. Estate of Quick v. Commissioner, 110 T.C. 440, 441
(1998). This Court has discretion whether to grant a motion for
reconsideration and will not do so unless the moving party shows
unusual circumstances or substantial error. Id.; see also Vaughn
v. Commissioner, 87 T.C. 164, 166-167 (1986). “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.” Estate of Quick v.
Commissioner, supra at 441-442.
I. The Alleged “Material Factual Errors”
In his motion for reconsideration, petitioner alleges that
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our opinion in Martin II “either held or strongly inferred facts
in conflict with the facts as found [in Martin I], or contrary to
the stipulation filed in [Martin II], and those errors were
material to [the Court’s] reasoning and conclusion.” The first
such error identified by petitioner is our statement that Mr.
Berg was petitioner’s counsel in a related deficiency case.
Petitioner contends that our statement equated with a finding
contrary to Martin I that Mr. Berg was authorized to file the
petition on petitioner’s behalf in the 1980 deficiency case. In
so arguing, petitioner misreads Martin II, which clearly provided
that “petitioner did not file, authorize the filing of, or ratify
the filing of the petition Mr. Berg signed and submitted.”
Furthermore, our holding with respect to the unauthorized
petition’s effect on the limitations period stated that “Although
petitioner did not authorize Mr. Berg to file the petition, the
petition nevertheless placed a ‘proceeding in respect of the
deficiency’ on our docket and suspended the limitations period.”
(Emphasis added.)
Petitioner asserts, as our second error, that a footnoted
portion of our discussion in Martin II conflicts with the
findings of fact in Martin I. In Martin II, we stated in
footnote 14 that Congress did not intend the expiration of the
limitations period during the period that a defective petition is
pending before the Court to disable the Commissioner’s power to
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assess and collect the disputed tax. According to petitioner,
this observation implies that petitioner “intentionally let the
case linger until the statute of limitations would have run” and
conflicts with the Court’s finding in Martin I that petitioner
did not know of the unauthorized petition until the time when he
moved for its dismissal. Again, we disagree with petitioner’s
reading of Martin II. We made no factual finding that petitioner
knew of the unauthorized petition and intentionally left it
pending. Furthermore, our discussion of this particular policy
concern did not use language accusing petitioner of intentionally
attempting to sidestep the limitations period.
As our third error, petitioner contends that, by
acknowledging in footnote 14 the policy implication of the strong
presumption of authority afforded counsel when filing a petition
in this Court, we found that the presumption was not overcome
here, a finding in conflict with Martin I. Petitioner’s
interpretation of our discussion is nonsensical. We did not make
any finding in footnote 14 with respect to whether petitioner
overcame a presumption of authority; moreover, throughout the
opinion, we described the petition’s filing as unauthorized.
II. The Alleged “Material Errors in Analysis of the Cases”
In addition to allegations that we made substantial errors
of fact in Martin II, petitioner alleges that we made material
errors of law. We address petitioner’s allegations below.
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First, petitioner asserts that we misinterpreted the case
law in support of our holding that Mr. Berg’s failure to attach
petitioner’s copy of the joint notice of deficiency to the
unauthorized petition did not invalidate the petition. In
particular, petitioner alleges that we misread Normac, Inc. v.
Commissioner, 90 T.C. 142 (1988); O’Neil v. Commissioner, 66 T.C.
105 (1976); and Estate of DuPuy v. Commissioner, 48 T.C. 918
(1967). We have previously rejected petitioner’s legal arguments
on this issue, not only in Martin II, but also in a prior
proceeding that arose out of Martin I. See Rothhammer v.
Commissioner, T.C. Memo. 2001-46. A motion for reconsideration
is not the appropriate forum for rehashing these arguments. See
Estate of Quick v. Commissioner, supra at 441-442.
Second, petitioner challenges our application of Eversole v.
Commissioner, 46 T.C. 56 (1966), to the limitations period issue.
Petitioner argues that Martin II distinguished the facts in
Eversole from petitioner’s case and improperly treated Mr. Berg’s
filing of the petition as authorized. On the contrary, Martin II
treated the petition as unauthorized and addressed petitioner’s
attempt in his reply brief to distinguish Eversole from Martin II
by emphasizing the close relationship between the unauthorized
filer and the taxpayer in Eversole.
III. Conclusion
We have considered petitioner’s remaining arguments and, to
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the extent not discussed above, find those arguments to be
irrelevant, moot, or without merit.
Petitioner has failed to demonstrate unusual circumstances
or substantial errors of fact or law. Accordingly, we will deny
petitioner’s motion for reconsideration.
To reflect the foregoing,
An appropriate order denying
petitioner’s motion for
reconsideration will be issued.