                             T.C. Memo. 2017-212



                       UNITED STATES TAX COURT



               JACK HOWARD TAYLOR, Petitioner v.
         COMMISSIONER OF INTERNAL REVENUE, Respondent*



     Docket No. 17349-15.                          Filed October 25, 2017.



       P moved to vacate or revise the Court’s decision in Taylor v.
     Commissioner, T.C. Memo. 2017-132.

        Held: P’s motion will be denied because it was not filed timely
     and because P failed to argue or show any unusual circumstances or
     substantial error justifying the Court’s revisitation of its decision.



     Jack Howard Taylor, pro se.

     Corey R. Clapper and Amy Dyar Seals, for respondent.




     *
       This opinion supplements our previously filed Memorandum Opinion
Taylor v. Commissioner, T.C. Memo. 2017-132.
                                        -2-

[*2]             SUPPLEMENTAL MEMORANDUM OPINION


       LARO, Judge: Currently before the Court is petitioner’s motion under Rule

1621 to vacate or revise our decision in Taylor v. Commissioner (Taylor I), T.C.

Memo. 2017-132. In Taylor I, we held that distributions to petitioner by the Local

Governmental Employees’ Retirement System of North Carolina (LGERS) and the

North Carolina Firemen and Rescue Squad Workers’ Pension Fund (FRSWPF)

were not excludable from gross income as amounts received under workmen’s

compensation acts for injuries or sickness because they are retirement pensions

determined by reference to petitioner’s age or length of service or his prior

contributions. We will deny petitioner’s motion for the reasons stated below.

                                    Background

       For convenience, we incorporate the background facts recited in Taylor I

and supplement them as necessary for this opinion.

I.     Petitioner’s Service as a Fireman and Subsequent Retirement

       Petitioner was born in August 1944. He was hired by the City of Asheville

Fire Department on October 18, 1966. His last day of work was March 10, 1991,


       1
       Unless otherwise indicated, section references are to the Internal Revenue
Code in effect at all relevant times. Rule references are to the Tax Court Rules of
Practice and Procedure.
                                         -3-

[*3] and he retired on disability effective June 1, 1991, in his 24th year of service

with the department.

      LGERS began paying petitioner a disability retirement allowance on June 1,

1991, which was computed with reference to his age, length of service, and

average final compensation before his disability retirement. At an unspecified

later date petitioner also began receiving a pension from FRSWPF. Petitioner

turned 60 in August 2004, whereupon LGERS sent him a letter notifying him that

he was being transferred from disability retirement to regular service retirement

effective September 1, 2004.

II.   Petitioner’s 2012 Retirement Benefits and Tax Return

      For 2012 petitioner was paid $35,153 in retirement benefits by LGERS and

$2,040 in retirement benefits by FRSWPF. He was issued a Form 1099-R,

Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs,

Insurance Contracts, etc., by LGERS indicating that he had received $34,829 in

taxable retirement benefits during the 2012 tax year. Petitioner was also issued a

Form 1099-R by FRSWPF showing that he had received $2,000 in taxable

retirement benefits during the 2012 tax year. Box 7 of each Form 1099-R was

marked with the distribution code “7” indicating a normal distribution.
                                        -4-

[*4] Petitioner timely filed a Form 1040, U.S. Individual Income Tax Return, for

the 2012 tax year. On his return petitioner reported $2,324 of taxable retirement

income for that year. Further, petitioner did not report any dividend income on the

return, notwithstanding the issuance to him of a Form 1099-DIV, Dividends and

Distributions, by National Financial Services, LLC, showing ordinary dividend

income of $892 and capital gain distributions of $226. Petitioner had conceded

respondent’s adjustments related to these items of dividend income.

III.   Notice of Deficiency and Petition

       Respondent on April 6, 2015, issued a notice of deficiency to petitioner,

determining a $3,806 deficiency in petitioner’s Federal income tax for the 2012

taxable year. In the notice respondent made three adjustments, the first two of

which petitioner conceded: (1) increased taxable dividends from zero to $892;

(2) increased “Schedule D/capital gain dividends” from zero to $226; and

(3) increased taxable retirement income from $2,324 to $36,829. As to the third

adjustment, respondent indicated that petitioner had received taxable retirement

income from two payors. For the first, LGERS, respondent identified $2,324 as

shown on petitioner’s return and increased that amount by $32,505 to arrive at the

$34,829 of taxable income reported on the Form 1099-R generated by LGERS.

For the second, FRSWPF, respondent identified zero as shown on petitioner’s
                                          -5-

[*5] return and increased that amount by $2,000 to reflect the taxable income

reported on the FRSWPF Form 1099-R.

      The notice of deficiency specified that the last date to file a petition with

this Court was July 6, 2015. The petition was received by the Court and filed in

the morning of July 7, 2015. It was signed and dated by petitioner on July 5,

2015, and bore a postmark indicating that it was mailed by FedEx Standard

Overnight service on July 6, 2015. Since the petition was mailed timely using a

designated private delivery service, see Notice 2015-38, 2015-21 I.R.B. 984, it is

treated as filed timely, see sec. 7502(a), (f).

IV.   Opinion and Decision in Taylor I

      For the reasons explained in Taylor I we held that the amounts petitioner

received from LGERS were from “a retirement pension * * * determined by

reference to the employee’s age or length of service, or the employee’s prior

contributions” and the exclusion from gross income for workmen’s compensation

under section 104(a)(1) did not apply. See sec. 1.104-1(b), Income Tax Regs. As

to petitioner’s income from FRSWPF, we found that petitioner had not asserted a

dispute regarding the FRSWPF payments’ taxability and thus had conceded it.

Even were the FRSWPF income contested, we determined that it was not in the

nature of workmen’s compensation--and thus not excludable from gross income
                                           -6-

[*6] under section 104(a)(1)--because eligibility for the FRSWPF pension is

determined by reference to the employee’s age and prior contributions. See id.

      Accordingly, we held that a decision would be entered for respondent. We

filed our opinion in Taylor I on July 5, 2017. On that same day, we entered a

decision determining that there was a $3,806 deficiency in income tax due from

petitioner for the 2012 taxable year.

V.    Petitioner’s Motion To Vacate or Revise

      On August 8, 2017, petitioner filed a motion to vacate or revise our decision

in Taylor I. The motion was mailed from Asheville, North Carolina, by FedEx

Priority Overnight service on August 7, 2017, as evidenced by the shipping label

on the envelope in which the motion arrived at the Court. Pursuant to this Court’s

order, respondent on August 22, 2017, filed a response to petitioner’s motion.

                                        Discussion

I.    Rule 162 Motions

      Petitioner filed his motion under Rule 162, which provides: “Any motion to

vacate or revise a decision, with or without a new or further trial, shall be filed

within 30 days after the decision has been entered, unless the Court shall

otherwise permit.” The rule does not specify any standard by which a motion to

vacate or revise a decision should be judged. Our caselaw, however, has
                                         -7-

[*7] developed certain heuristics for assessing such motions. Thus, the decision to

grant a motion to vacate lies within this Court’s discretion. See, e.g., Kun v.

Commissioner, T.C. Memo. 2004-273, 2004 WL 2712202, at *2 (citing Vaughn v.

Commissioner, 87 T.C. 164, 166-167 (1986)), aff’d without published opinion,

157 F. App’x 971 (9th Cir. 2005). We often look to rule 60 of the Federal Rules

of Civil Procedure as a guidepost by which to resolve Rule 162 motions. See Kun

v. Commissioner, 2004 WL 2712202, at *2 (citing Cinema ‘84 v. Commissioner,

122 T.C. 264, 267-268 (2004); Estate of Miller v. Commissioner, T.C. Memo.

1994-25; and Pietanza v. Commissioner, T.C. Memo. 1990-524, aff’d without

published opinion, 935 F.2d 1282 (3d Cir. 1991)). Under that rule, motions to

vacate generally are not granted without a showing of unusual circumstances or

substantial error, such as mistake, inadvertence, surprise, excusable neglect, newly

discovered evidence, fraud, or other reason justifying relief. See, e.g.,

Intermountain Ins. Serv. of Vail, LLC v. Commissioner, 134 T.C. 211, 216 (2010),

rev’d, 650 F.3d 691 (D.C. Cir. 2011), vacated and remanded, 566 U.S. 972 (2012);

Mitchell v. Commissioner, T.C. Memo. 2013-204, at *8, aff’d, 775 F.3d 1243

(10th Cir. 2015). Nonetheless, “[r]econsideration is not the appropriate forum for

rehashing previously rejected arguments or tendering new legal theories to reach
                                         -8-

[*8] the end result desired by the moving party.” Estate of Quick v.

Commissioner, 110 T.C. 440, 441-442 (1998).

II.   The Parties’ Arguments

      A.     Petitioner’s Position

      Petitioner advances several arguments in support of his motion. First, he

states that he had never disputed the payments from FRSWPF and that respondent

erred in broaching that issue.

      Second, petitioner asserts that the State law definitions of “retirement

pension” and “annuity” require them to be “payments for life”, see N.C. Gen. Stat.

Ann. sec. 128-21(3), (15) (Westlaw 2012), meaning that the payments he received

from LGERS did not fall within the category of a “retirement pension” not

excluded from gross income by section 104(a)(1), see sec. 1.104-1(b), Income Tax

Regs. Petitioner’s position is that North Carolina law does not conflict with the

definition of a pension under Federal law, see sec. 1.401-1(b)(1)(i), Income Tax

Regs., and that there is nothing in Federal law to dispute petitioner’s assertion that

a pension need be for life. Petitioner adds that under Federal law there are defined

benefit plans and defined contribution plans, and LGERS is a governmental plan

within the meaning of section 414.
                                         -9-

[*9] Third, petitioner maintains that respondent erred in drawing a parallel

between petitioner’s situation and that of the taxpayer in Picard v. Commissioner,

165 F.3d 744 (9th Cir. 1999), rev’g T.C. Memo. 1997-320, where the Court of

Appeals held in the taxpayer’s favor on the excludability of disability retirement

income.

      Fourth, petitioner submits that while North Carolina law allows disability

beneficiaries to “convert” a disability retirement allowance to a reduced service

retirement allowance if they are engaged or may engage in a gainful occupation

paying more than a certain amount, N.C. Gen. Stat. Ann. sec. 128-27(e)(1), the

rule in paragraph (e)(6) of that section, which treats disability retirement

beneficiaries as service retirement beneficiaries when they reach the earliest date

on which they would have qualified for an unreduced service retirement

allowance, uses a different word: “considered”. Thus, petitioner believes that

beneficiaries on disability may not convert to a service retirement if they never

return to duty or earn more than the difference between their reduced disability

allowance and the amount they would have received as a service allowance.

Petitioner adds that, unlike the disability benefit payments received by the

taxpayer in Tateosian v. Commissioner, T.C. Memo. 2008-101, his disability

retirement allowance was never formally transferred to a service retirement
                                         - 10 -

[*10] allowance and the amount was not affected by his reaching age 60 or any

other subsequent event.

      B.     Respondent’s Argument

      Respondent urges that the Court sustain its decision as entered. He first

argues that petitioner’s motion was not timely. Rule 162 allows for motions to

revise or vacate to be filed within 30 days of the entry of a decision. Respondent

points out that the decision in this case was entered on July 5, 2017, whereas

petitioner’s motion was filed on August 8, 2017, 34 days after the decision was

entered. The timely mailing rule of section 7502 does not apply, respondent

maintains, because the motion was mailed on August 7, 2017, which was three

days after the deadline for filing it.

      Respondent disputes that the FRSWPF payments are not at issue, because

while the taxable amount of the total payments was reported as $2,000, petitioner

on his 2012 income tax return reported $2,324 as taxable retirement income.

Because of this discrepancy, respondent maintains that he appropriately treated

both sources of retirement income as relevant. Respondent also states that it is not

clear why petitioner brought up that LGERS is a governmental plan, because

petitioner does not elaborate on that argument further. Respondent adds that these

two arguments are unseasonable because petitioner could have argued them earlier
                                        - 11 -

[*11] in the case but did not. As to the remainder of petitioner’s motion,

respondent argues that it relies on arguments previously made by petitioner and

resolved by the Court in Taylor I.

III.   Timeliness of Petitioner’s Motion

       We agree with respondent that petitioner’s motion to vacate or revise is not

timely. Rule 162 requires that such motions be filed within 30 days after the

decision in a case has been entered. The decision in this case was entered on July

5, 2017. Petitioner could file a Rule 162 motion at any time through August 4,

2017, which day was not a Saturday, Sunday, or legal holiday in the District of

Columbia. See sec. 7503. Petitioner’s motion was mailed on August 7, 2017, and

received by this Court on the following day. Because the postmark on the

envelope in which the motion was mailed is dated after August 4, 2017, the rule of

section 7502(a) that a document is treated as timely filed when timely mailed does

not apply. See also sec. 301.7502-1(a), Proced. & Admin. Regs. Thus, the motion

is late, having been filed late on August 8, 2017, which is four days after the time

allowed by Rule 162 for such motions to be filed.

IV.    Disposition of Petitioner’s Motion

       Because petitioner’s motion is not timely, and because petitioner did not

move for leave to file his Rule 162 motion out of time, we would be justified in
                                        - 12 -

[*12] denying it on those grounds alone. However, were we to resolve the motion

on its merits, petitioner still would not prevail, because he has failed to argue any

unusual circumstances or substantial error, which is the standard to which we hold

Rule 162 motions. See Mitchell v. Commissioner, at *8.

      Most of petitioner’s motion consists of rehashed arguments we had rejected

in Taylor I. Such arguments are not appropriate grounds on which reconsideration

in a case may be granted. See Estate of Quick v. Commissioner, 110 T.C. at 441-

442. Further, we have already determined in Taylor I that petitioner had not

disputed the FRSWPF payments’ taxability and thus had conceded the issue; the

parties appear to agree on this point, and we consider the issue resolved. Finally,

petitioner’s argument that LGERS is a governmental plan is not relevant and

would not affect our decision in this case even if it had been raised on brief. At

any rate, because this argument was not advanced earlier, it is too late to raise it

now. See, e.g., Thiessen v. Commissioner, 146 T.C. 100, 106 (2016) (“[I]ssues

and arguments not advanced on brief are considered to be abandoned.”); see also

Rule 34(b)(4) (providing that issues not raised in a petition are deemed conceded).

      In sum, petitioner’s sole justification for seeking to have this Court’s

decision vacated is that he believes the result reached therein to be incorrect. This

is not a sufficient reason to justify our revisiting the decision. Reconsideration is
                                         - 13 -

[*13] not appropriate for rehashing previously rejected legal arguments or

tendering new legal theories. Estate of Quick v. Commissioner, 110 T.C. at 441-

442. Thus, we will deny petitioner’s motion to vacate or revise the decision in this

case.

V.       Conclusion

         We have concluded that petitioner’s motion under Rule 162 to vacate or

revise the decision entered in Taylor I is to be denied for two reasons. First, the

motion was not timely. Second, even if we were to allow the motion to stand and

decide it on its merits, it fails to meet the standard for granting Rule 162 motions.

         We have considered all of the parties’ arguments, and to the extent not

discussed above, conclude that those arguments are irrelevant, moot, or without

merit.

         To reflect the foregoing,


                                                  An appropriate order will be issued.
