                         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.
                                - 2 -

     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
                                - 5 -

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
                               - 6 -

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.
                                - 7 -

       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.
