John H. Thompson; Melanie Salyers Thompson v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. THOMPSON; MELANIE
SALYERS THOMPSON,
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 16-72537
Tax Ct. No. 4628-15
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
John H. Thompson and Melanie Salyers Thompson appeal pro se from the
Tax Court’s decision, following a bench trial, upholding the Commissioner of
Internal Revenue’s determination of deficiencies. We have jurisdiction under 26
U.S.C. § 7482(a)(1). We review de novo the Tax Court’s legal conclusions and for
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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clear error its factual determinations. Kelley v. Comm’r, 45 F.3d 348, 350 (9th Cir.
1995). We affirm.
The Tax Court properly concluded that appellants did not meet their burden
of proving they were entitled to a foreign earned income exclusion. See 26 U.S.C.
§ 911(d)(1) (definition of “qualified individual”); id. § 911(d)(4) (requirements for
waiver of period of stay in a foreign country). Contrary to appellants’ contentions,
any prior allowance of the exclusion or failure to provide a clear explanation as to
any change in position regarding the exclusion does not provide a basis for relief.
See Dixon v. United States, 381 U.S. 68, 72-73 (1965) (“[T]he Commissioner is
empowered retroactively to correct mistakes of law in the application of the tax
laws to particular transactions . . . even where a taxpayer may have relied to his
detriment on the Commissioner’s mistake.”).
The Tax Court did not abuse its discretion by denying appellants’ motion for
reconsideration and motion to vacate because the motions provided no basis to
conclude that the Tax Court’s prior decisions were in error. See Thomas v. Lewis,
945 F.2d 1119, 1123 (9th Cir. 1991) (standard of review for motion to vacate);
Parkinson v. Comm’r, 647 F.2d 875, 876 (9th Cir. 1981) (standard of review for
motion for reconsideration).

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To the extent appellants challenge the denial of the motion to dismiss, we
reject the challenge as meritless.
AFFIRMED.

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