                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DON C. MONTGOMERY and
    JUDY MONTGOMERY,

                Petitioners-Appellants,

    v.                                                   No. 00-9033
                                                   (Tax Court No. 20005-93)
    COMMISSIONER OF INTERNAL
    REVENUE,

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO, and KELLY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioners Don and Judy Montgomery, appearing pro se, have filed

a second appeal relating to the tax court’s decision, following a trial, determining

that they had substantial unreported income during 1988 and 1989. The

background facts of this case are well known to the parties and are fully set

forth in our decision resolving the first appeal.   See Montgomery v.

Commissioner , No. 98-9007, 1999 WL 1256294 (10th Cir. Dec. 21, 1999)

(unpublished disposition).

       In the first appeal, we affirmed the tax court’s decision sustaining income

tax deficiencies based on substantial unreported income, but reversed and

remanded the case with respect to three payments that Mr. Montgomery received

from Trans State Pavers (Trans State) on behalf of H & B Transport, Inc. (H & B)

but allegedly did not deposit into the H & B bank account. As to these payments,

we held that petitioners had presented evidence that three deposits in H & B’s

account matched the amounts paid by Trans State and that the Commissioner had

not met his burden of proving that Mr. Montgomery took the money from

Trans State for his own personal use. Accordingly, we reversed and remanded to

determine the appropriate reduction in taxes and penalties with respect to these

three payments.

       On remand, petitioners filed a motion for a new trial reasserting all of the

arguments previously raised in the tax court and on appeal before this court.


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The tax court held that motion in abeyance and ordered both parties to submit

a proposed computation of the tax deficiencies.    See Rule 155 of the Tax Court

Rules of Practice and Procedure (governing computation by parties for entry of

decision). The Commissioner filed a proposed computation of the taxes and

penalties due after taking into consideration this court’s ruling that the three

Trans State payments were not income to Mr. Montgomery. In response,

petitioners stated they did not have the ability or knowledge to file a proposed

computation and were expecting a new trial. The tax court gave petitioners

a deadline to file an objection to the Commissioner’s submitted computation.

Petitioners responded that they did not know if the Commissioner’s computation

was correct and stated that they did not agree that they owed any taxes. The tax

court accepted the Commissioner’s computation, finding that petitioners had not

presented anything to suggest that the Commissioner’s computation was incorrect,

and it entered judgment accordingly.    See Rule 155(b) (if “opposite party fails

to file an objection . . . then the [tax c]ourt may enter decision in accordance

with the computation already submitted.”). The tax court also denied the

petitioners’ motion for a new trial.

      On appeal, petitioners continue to try to relitigate issues already decided

against them in the first appeal. This court’s order of remand was narrowly

limited to the issue of recalculating petitioners’ taxes to reflect the reduction


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in taxes and penalties relating to the three Trans State payments. Because

our mandate to the tax court was so limited, the remand did not permit any

issues relating to the other determinations of tax deficiencies to be reopened.

See Ute Indian Tribe v. Utah , 114 F.3d 1513, 1520-21 (10th Cir. 1997) (holding

that the mandate rule requires lower court to comply strictly with mandate

rendered by reviewing court). Thus, the tax court properly denied petitioners’

request for a new trial.

      Because the “[i]ssues considered in a [Tax Court] Rule 155 proceeding are

limited to purely mathematically generated computational items, we will review

the Tax Court’s computations under Rule 155 for abuse of discretion.”     Chimblo

v. Commissioner , 177 F.3d 119, 127 (2d Cir. 1999) (quotations and citations

omitted, alteration in original). Petitioners did not submit their own proposed

computation, did not file an objection to the Commissioner’s computation, and

do not allege any error in the computation accepted by the tax court. Thus,

we conclude that the tax court did not abuse its discretion in accepting the

Commissioner’s computation of the tax deficiencies.

      The judgment of the tax court is AFFIRMED.

                                                      Entered for the Court


                                                      David M. Ebel
                                                      Circuit Judge


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