                         T.C. Memo. 2011-265



                       UNITED STATES TAX COURT



                  JAMES F. MOORE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent*



     Docket No. 23193-09.               Filed November 8, 2011.



     Keith Wolak, for petitioner.

     K. Elizabeth Kelly and Mayer Y. Silber, for respondent.



                 SUPPLEMENTAL MEMORANDUM OPINION


     VASQUEZ, Judge:    On September 8, 2011, pursuant to Rule

161,1 petitioner timely filed a motion for reconsideration of


     *
        This opinion supplements our prior opinion, Moore v.
Commissioner, T.C. Memo. 2011-200.
     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
                                                   (continued...)
                               - 2 -

this Court’s Memorandum Findings of Fact and Opinion in Moore v.

Commissioner, T.C. Memo. 2011-200 (Moore I).   In Moore I we held

that petitioner was not entitled to deduct payments that he made

to his former spouse during 2006 as alimony under section 215(a).

                            Background

     We adopt the findings of fact in our prior Memorandum

Findings of Fact and Opinion, Moore I.   For convenience and

clarity, we repeat below the facts necessary for the disposition

of this motion.

     In 2006 petitioner made payments to his former spouse of

$21,700.82 and deducted these amounts as alimony on his Form

1040, U.S. Individual Income Tax Return, for 2006.   Respondent

subsequently determined that petitioner’s payments were not

deductible as alimony.   The divorce decree is silent as to

whether petitioner’s maintenance obligation to his former spouse

terminates on her death.

                            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


     1
      (...continued)
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 3 -

(1998).    This Court has discretion 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.

     In Moore I we concluded that petitioner was not entitled to

deduct payments he made to his former wife as alimony under

section 215.    Section 215(a) permits a deduction for the payment

of alimony during a taxable year.    Section 215(b) defines

“alimony” as alimony which is includable in the gross income of

the recipient under section 71.     Section 71(b)(1) defines alimony

as any cash payment meeting the four criteria provided in

subparagraphs (A) through (D) of that section.2    Accordingly, if


     2
          Sec. 71(b)(1) provides:

          SEC. 71(b). Alimony or Separate Maintenance Payments
     Defined.--For purposes of this section--

                 (1) In general.--The term “alimony or separate
            maintenance payment” means any payment in cash if--

                      (A) such payment is received by (or on behalf
                 of) a spouse under a divorce or separation
                 instrument,

                      (B) the divorce or separation instrument does
                 not designate such payment as a payment which is
                                                     (continued...)
                                - 4 -

any portion of the payments petitioner made fails to meet any one

of the four enumerated criteria, that portion is not alimony for

purposes of section 71(b)(1) and petitioner cannot deduct it.

     Respondent agreed that the requirements of subparagraphs (A)

and (C) had been satisfied.    He argued, however, that

petitioner’s payments to his former wife did not satisfy

subparagraphs (B) and (D).    We agreed with respondent that the

payments did not satisfy the requirements of section 71(b)(1)(D).

We also noted that “[b]ecause petitioner fails to show that the

payments comply with subpar. (D), we need not determine whether

they satisfied subpar. (B).”

     Petitioner argues that we should grant his motion for

reconsideration because (1) this Court, when deciding whether

alimony payments automatically terminate upon the death of the

payee spouse under Indiana law, overlooked Deel v. Deel, 909


     2
      (...continued)
               not includible in gross income under this section
               and not allowable as a deduction under section
               215,

                    (C) in the case of an individual legally
               separated from his spouse under a decree of
               divorce or of separate maintenance, the payee
               spouse and the payor spouse are not members of the
               same household at the time such payment is made,
               and

                    (D) there is no liability to make any such
               payment for any period after the death of the
               payee spouse and there is no liability to make any
               payment (in cash or property) as a substitute for
               such payments after the death of the payee spouse.
                               - 5 -

N.E.2d 1028 (Ind. Ct. App. 2009) and (2) we failed to address

whether petitioner satisfied his evidentiary obligation with

respect to section 71(b)(1)(B).   In response, respondent contends

that petitioner’s allegations of error are not based on new

evidence and merely restate arguments petitioner made in Moore I.

     In deciding whether petitioner’s maintenance obligation

would terminate upon the death of his former spouse, the Court

considered Deel and determined that it did not warrant

discussion.   Petitioner cited Deel for the proposition that under

Indiana law, unless the terms of the divorce decree specify that

the payments survive the death of the payee spouse, maintenance

payments automatically terminate on the death of the payee

spouse.   After reviewing Deel we determined that it did not stand

for the proposition for which petitioner cited it.

     In Deel, the Indiana Court of Appeals decided whether the

payments Mr. Deel made to his former wife were maintenance

payments or part of a property settlement, not whether under

Indiana law a maintenance obligation terminates on the death of

the payee spouse.   Deel v. Deel, supra at 1031.   After concluding

the divorcee decree was ambiguous, the court of appeals stated:

          To resolve the ambiguity, we consider various factors
     to determine whether the clause is one for maintenance or
     part of a property settlement. Mackey v. Estate of Mackey,
     858 N.E.2d 1038, 1043 (Ind. Ct. App. 2006) (citing In re
     Marriage of Buntin, 496 N.E.2d 1351, 1353-54 (Ind. Ct.
     App. 1986)). The factors indicating that a payment was
     maintenance are: (1) the designation as maintenance; (2)
     provision terminating the payments upon death of either
                                - 6 -

     party; (3) payments made from future income; (4) provisions
     for termination upon remarriage; (5) provisions calling for
     the modification based upon future events; (6) and payments
     for an indefinite period of time. Id. On the other hand,
     property settlements are indicated when: (1) the payments
     are for a sum certain payable over a definite period of
     time; (2) there are no provisions for modification based on
     future events; (3) the obligation to make payments survives
     the death of the parties; (4) the provisions call for
     interest; and (5) the award does not exceed the value of the
     marital assets at the time of dissolution. Id.; see also
     * * * [Brinkmann v. Brinkmann, 772 N.E.2d 441, 445 (Ind. Ct.
     App. 2002)].

Id. at 1034.

     The court of appeals concluded that for a number of reasons,

the payments constituted spousal maintenance.    Id.   In evaluating

the factors the court of appeals stated that “the sum and

duration of the payments were uncertain because the decree does

not include an obligation for Husband to continue payments if

Wife died prior to attaining the age of sixty-five.”3    Id. at

1035.    This is the statement on which petitioner relies.   The

court of appeals did not explain why it concluded the payments

terminate on the payee’s death.    It is unclear whether this

determination was based on the facts of the case, and the court

of appeals did not cite any Indiana law for support.

Furthermore, the Court of Appeals stated that it was resolving

the ambiguity against the wife because her attorney drafted the

divorce decree.    Id. (citing Time Warner Entmt. Co. v. Whiteman,



     3
        The divorce decree provided that the payments terminated
when wife reached 65.
                                - 7 -

802 N.E.2d 886, 894 (Ind. 2004) (“We construe any contract

ambiguity against the party who drafted it.”)).     We do not read

Deel as expressly stating that Indiana law inserts into all

Indiana divorce decrees a default provision that automatically

terminates maintenance obligations upon the death of the payee

spouse.    Petitioner did not cite an opinion or statute, and we

have found none, that expressly states that, absent a provision

in the divorce decree to the contrary, by operation of Indiana

law maintenance payments automatically terminate on the death of

the payee spouse.

     In addition, petitioner questions our decision to not

discuss whether he satisfied his evidentiary obligation with

respect to section 71(b)(1)(B).    The four requirements of section

71(b)(1) are conjunctive; a payment is deductible as alimony only

if all four requirements of section 71(b)(1) are met.      Johnson v.

Commissioner, T.C. Memo. 2006-116.      Because the payments

petitioner made to his former spouse do not meet the requirements

of section 71(b)(1)(D), the question of whether the payments meet

the requirements of section 71(b)(1)(B) did not need to be

decided.

     Petitioner has failed to demonstrate unusual circumstances

or substantial errors of fact or law.     Accordingly, we will deny

petitioner’s motion for reconsideration.
                            - 8 -

To reflect the foregoing,

                                         An appropriate order

                                    will be issued.
