Attorney-at-Law

SAME AGAIN?

In Uncategorized on 11/08/2011 at 15:49

Didn’t Work the First Time, Either

If at first you don’t succeed, try, try again, but Esmiss Esmoore missed the first time and Jim fares no better in James F. Moore, 2011 T.C. Mem 265, filed 11/8/11. Readers of my blog, and followers of Tax Court decisions, will remember my blogpost “Essmiss Esmoore, Essmiss Esmoore”, 8/16/11, reporting James F. Moore, 2011 T.C. Mem. 200, filed 8/16/11. Jim missed out because the payment to Esmiss Esmoore, that Jim claimed was alimony but IRS said wasn’t, didn’t terminate at the death of Esmiss Esmoore, and Indiana law didn’t state that all alimony ceases automatically at death of recipient ex-spouse.

Jim tries again, but the case his counsel relies upon doesn’t say what counsel says it says, at least to Judge Vasquez’s satisfaction. So although Jim’s Rule 161 reconsideration motion is not supposed to serve as “the appropriate forum for rehashing previously rejected legal arguments or tendering new legal theories to reach the end result desired by the moving party.” 2011 T.C. Mem. 265, at p. 3 [citation omitted], Judge Vasquez goes the extra mile, analyzes the cited case, finds it’s still ambiguous, and holds that Jim is once again out of luck.

Takeaway- If you want to make a Rule 161 reconsideration motion, better have some heavy artillery, like a demonstrably serious error of law or fact, or evidence newly discovered that could not, by the exercise of due diligence, have been produced at the proceeding.

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