                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOHN H. THOMPSON; MELANIE                       No. 16-72537
SALYERS THOMPSON,
                                                Tax Ct. No. 4628-15
                Petitioners-Appellants,

 v.                                             MEMORANDUM*

COMMISSIONER OF INTERNAL
REVENUE,

                Respondent-Appellee.

                           Appeal from a Decision of the
                             United States Tax Court

                            Submitted August 9, 2017**

Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      John H. Thompson and Melanie Salyers Thompson appeal pro se from the

Tax Court’s decision, following a bench trial, upholding the Commissioner of

Internal Revenue’s determination of deficiencies. We have jurisdiction under 26

U.S.C. § 7482(a)(1). We review de novo the Tax Court’s legal conclusions and for


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
clear error its factual determinations. Kelley v. Comm’r, 45 F.3d 348, 350 (9th Cir.

1995). We affirm.

      The Tax Court properly concluded that appellants did not meet their burden

of proving they were entitled to a foreign earned income exclusion. See 26 U.S.C.

§ 911(d)(1) (definition of “qualified individual”); id. § 911(d)(4) (requirements for

waiver of period of stay in a foreign country). Contrary to appellants’ contentions,

any prior allowance of the exclusion or failure to provide a clear explanation as to

any change in position regarding the exclusion does not provide a basis for relief.

See Dixon v. United States, 381 U.S. 68, 72-73 (1965) (“[T]he Commissioner is

empowered retroactively to correct mistakes of law in the application of the tax

laws to particular transactions . . . even where a taxpayer may have relied to his

detriment on the Commissioner’s mistake.”).

      The Tax Court did not abuse its discretion by denying appellants’ motion for

reconsideration and motion to vacate because the motions provided no basis to

conclude that the Tax Court’s prior decisions were in error. See Thomas v. Lewis,

945 F.2d 1119, 1123 (9th Cir. 1991) (standard of review for motion to vacate);

Parkinson v. Comm’r, 647 F.2d 875, 876 (9th Cir. 1981) (standard of review for

motion for reconsideration).




                                          2                                    16-72537
      To the extent appellants challenge the denial of the motion to dismiss, we

reject the challenge as meritless.

      AFFIRMED.




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