Opinion
23581-17
07-21-2023
AARON G. FILLER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Elizabeth A. Copeland, Judge.
The Court entered an Order and Decision in this case on February 11, 2021, sustaining Respondent's determination of an income tax deficiency of $611,367 for Petitioner Aaron Filler's 2014 tax year and a penalty due under section 6662(a) in the amount of $122,2731 based on the Court's opinion in this case, Filler v. Commissioner, T.C. Memo 2021-6. Dr. Filler appealed our decision to the U.S. Court of Appeals for the Ninth Circuit, which affirmed our decision as to the deficiency but vacated it as to the section 6662(a) penalty. Filler v. Commissioner, No. 21-71080, 2022 U.S. App. LEXIS 19356 (9th Cir. Jul. 13, 2022). The U.S. Supreme Court denied Dr. Filler's petition for writ of certiorari on March 20, 2023, upon which the Ninth Circuit's decision became final. See Filler v. Commissioner, No. 22-784, 2023 U.S. LEXIS 1166 (U.S. Mar. 20, 2023).
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On March 22, 2023, Dr. Filler filed with this Court a Motion for a New Trial and a Declaration in support of that Motion. On March 24, 2023, Dr. Filler filed a corrected Motion for a New Trial and a Memorandum in support of his corrected Motion. On April 18, 2023, we issued an Order denying Dr. Filler's corrected Motion for a New Trial. On April 24, 2023, Dr. Filler filed a Motion for Reconsideration of Findings or Opinion Pursuant to Rule 161 (Motion), asking us to either reconsider our denial of his corrected Motion for a New Trial, vacate our prior Order and Decision and find in his favor on the net operating loss (NOL) carryforward issue, or remove the case to a U.S. district court to hear Dr. Filler's arguments as to patent infringement.
We will deny Dr. Filler's Motion for three reasons. First, Rule 161 requires motions for reconsideration of findings or opinion to be filed within 30 days after service of the written opinion (which in this case occurred on January 13, 2021), "unless the Court orders otherwise." Dr. Filler has not moved for leave to file his Motion out of time.
Second, Dr. Filler suggests that the Internal Revenue Service's (IRS) use of the word "agreement" in the Internal Revenue Manual (IRM) to describe Form 4549, Income Tax Examination Changes, alchemically coverts all Forms 4549 into bilaterally binding contracts. As we explained in our Order of April 18, 2023, Congress has statutorily specified a unique process-the closing agreement process under section 7121-by which the IRS can bind itself to a concession to the taxpayer. The IRM cannot override that statutory framework.
Third, we reiterate the final paragraph of our Order of April 18, 2023, which Dr. Filler's Motion ignores:
Even assuming arguendo that the Form 4549 signed by Dr. and Mrs. Filler bound the Commissioner and this Court with respect to the amounts of the Fillers' underpayments or overpayments for tax years 2010-13, it would not bind us to any conclusion with respect to Dr. Filler's 2014 tax year. The language on the Form 4549 that Dr. Filler alleges as contractual . . . makes reference only to "any increase in tax and penalties, and . . . any decrease in tax and penalties shown above." There is no mention of the particular tax items proposed in the substantive portion of the Form (such as the proposed $5,250,000 loss in 2012). Therefore, were we to grant Dr. Filler's motion for a new trial on his 2014 income tax liability, we would again apply a de novo standard of review and, lacking any new evidence bearing on the merits of Dr. Filler's claim to an NOL carryforward, reach the same determination that we did before.
Upon due consideration, it is
ORDERED that Petitioner's Motion for Reconsideration of Findings or Opinion Pursuant to Rule 161, filed on April 24, 2023, is denied.