                         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.
