265

* This Supplemental Opinion supplements Law Office of John H. 

Eggertsen P.C. v. Commissioner, 142 T.C. 110 (2014). 

LAW OFFICE OF JOHN H. EGGERTSEN P.C., PETITIONER v. 

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT* 

Docket No. 15479–11. Filed October 1, 2014. 

R filed a motion for reconsideration of findings or opinion 

in Law Office of John H. Eggertsen P.C. v. Commissioner, 142 

T.C. 110 (2014) (Eggertsen I), and a motion to vacate decision 

(collectively, R’s motions). In Eggertsen I, we addressed 

whether I.R.C. sec. 4979A(a) imposes a Federal excise tax 

(excise tax) on P for its taxable year 2005. We held that it 

does. We also addressed in Eggertsen I whether the period of 

limitations for assessing that tax has expired (statute of 

limitations issue). It was R’s position with respect to the 

statute of limitations issue in Eggertsen I that I.R.C. sec. 

4979A(e)(2)(D), not I.R.C. sec. 6501, controls resolution of that 

issue. In Eggertsen I, we accepted that position. We held that 

the period of limitations under I.R.C. sec. 4979A(e)(2)(D) for 

assessing the excise tax that I.R.C. sec. 4979A(a) imposes on 
266 143 UNITED STATES TAX COURT REPORTS (265) 

1 Respondent filed a memorandum (respondent’s memorandum) in support of respondent’s motion for reconsideration. (We shall refer collectively 

to respondent’s motion for reconsideration, respondent’s motion to vacate, 

and respondent’s memorandum as respondent’s motions). Petitioner filed a 

response to each of respondent’s motion for reconsideration and respondent’s motion to vacate, and respondent filed a reply to each of those responses. 2The parties stipulated all of the facts in Law Office of John H. 

Eggertsen P.C., v. Commissioner, 142 T.C. 110 (2014), and submitted the 

case under Rule 122, Tax Court Rules of Practice and Procedure. 

petitioner has expired. It is R’s position in R’s motions that 

I.R.C. sec. 6501, not I.R.C. sec. 4979A(e)(2)(D), controls resolution of the statute of limitations issue. According to R, 

because P did not file Form 5330, Return of Excise Taxes 

Related to Employee Benefit Plans, or any other document 

that qualifies as a return for I.R.C. sec. 4979A(a) excise tax 

purposes within the meaning of I.R.C. sec. 6501(a), I.R.C. sec. 

6501(c)(3) permits R to assess at any time the excise tax that 

I.R.C. sec. 4979A(a) imposes on P. Held: Upon reconsideration 

of the statute of limitations issue in Eggertsen I, I.R.C. sec. 

6501, not I.R.C. sec. 4979A(e)(2)(D), controls resolution of that 

issue because P did not file Form 5330 or any other document 

that qualifies as a return for I.R.C. sec. 4979A(a) excise tax 

purposes within the meaning of I.R.C. sec. 6501(a). I.R.C. sec. 

4979A(e)(2)(D) serves only to extend under the circumstances 

set forth therein the period of limitations prescribed by I.R.C. 

sec. 6501. Held, further, the excise tax that I.R.C. sec. 

4979A(a) imposes on P for its taxable year 2005 may be 

assessed at any time under I.R.C. sec. 6501(c)(3). 

Stephen Wasinger, for petitioner. 

David S. Weiner, John W. Stevens, and Shawn P. Nowlan, 

for respondent. 

SUPPLEMENTAL OPINION 

CHIECHI, Judge: This case is before us on respondent’s 

motion for reconsideration of findings or opinion (respondent’s motion for reconsideration) and respondent’s motion to 

vacate decision (respondent’s motion to vacate). 1 We shall 

grant respondent’s motions. 

Background 

We incorporate herein by reference the facts set forth in 

Law Office of John H. Eggertsen P.C. v. Commissioner, 142 

T.C. 110 (2014) (Eggertsen I). 2 We repeat here only those 

facts relevant to this Supplemental Opinion. 
(265) LAW OFFICE OF JOHN H. EGGERTSEN P.C. v. COMM’R 267

At all relevant times, 100% of the stock of petitioner was 

allocated to John H. Eggertsen under an employee stock 

ownership plan that petitioner, an S corporation, maintained 

(ESOP in question). 

Around April 26, 2006, petitioner filed Form 1120S, U.S. 

Income Tax Return for an S Corporation, for its taxable year 

2005 (2005 Form 1120S). Petitioner attached to that form 

Schedule K–1, Shareholder’s Share of Income, Deductions, 

Credits, etc. 

In petitioner’s 2005 Form 1120S, petitioner showed, inter 

alia, that during 2005 the ESOP in question owned 100% of 

the stock of petitioner. 

On a date not established by the record during 2006, the 

ESOP in question filed Form 5500, Annual Return/Report of 

Employee Benefit Plan (employee benefit plan 2005 annual 

return), for its taxable year 2005. The ESOP in question 

attached to that form Schedule E, ESOP Annual Information. 

The ESOP in question also attached to the employee benefit 

plan 2005 annual return Schedule I, Financial Information— 

Small Plan, and Schedule SSA, Annual Registration Statement Identifying Separated Participants With Deferred 

Vested Benefits. 

In the employee benefit plan 2005 annual return, the 

ESOP in question showed that (1) its effective date was 

January 1, 1999; (2) it was maintained by petitioner during 

2005; (3) it had three participants during 2005, two of whom 

were not identified and were described as ‘‘Active participants’’ and one of whom was identified as Kerry C. Duggan 

and described as ‘‘Other retired or separated participants 

entitled to future benefits’’; (4) it held assets at the end of 

2005 valued at $401,500; and (5) its assets consisted exclusively of ‘‘Employer securities’’. 

On a date not established by the record, the ESOP in question filed an amended Form 5500 (amended employee benefit 

plan 2005 annual return) for its taxable year 2005. The 

ESOP in question attached to that form Schedule I. 

In the amended employee benefit plan 2005 annual return, 

the ESOP in question showed information that was identical 

in most respects to the information that it had showed in the 

employee benefit plan 2005 annual return, except that (1) the 

ESOP in question did not identify in the amended employee 

benefit plan 2005 annual return the individual described in 
268 143 UNITED STATES TAX COURT REPORTS (265) 

3 All section references are to the Internal Revenue Code (Code) in effect 

for the year at issue. 

that return as ‘‘Other retired or separated participants entitled to benefits’’ and (2) the ESOP in question showed in the 

amended employee benefit plan 2005 annual return that it 

held assets at the end of 2005 valued at $868,833, which 

included ‘‘Employer securities’’ valued at that yearend at 

$401,500. 

Petitioner did not file Form 5330, Return of Excise Taxes 

Related to Employee Benefit Plans, for its taxable year 2005. 

Respondent filed a substitute for Form 5330 for petitioner for 

that taxable year. 

In Eggertsen I, we addressed whether section 4979A(a) 3

imposes a Federal excise tax (excise tax) on petitioner for its 

taxable year 2005. We held that it does. We also addressed 

in Eggertsen I whether the period of limitations for assessing 

that tax has expired (statute of limitations issue). In 

Eggertsen I, it was respondent’s position that section 

4979A(e)(2)(D), not section 6501, controls resolution of the 

statute of limitations issue. On brief, respondent argued in 

Eggertsen I: 

I.R.C. § 6501(a) is not the governing period of limitations under the facts 

of this case. By its terms * * * I.R.C. § 4979A(e) (2) (D) is the applicable 

statute of limitations in this case.4

The specific triggering requirement to begin the running of the statute 

under the circumstances of this case is the later of the date of the allocation or ownership at issue or the date when the taxpayer provides 

notification to the respondent of the ownership or allocation at issue. 

I.R.C. § 4979A(e) (2) (D). 

By contrast, the event that triggers the running of I.R.C. § 6501 is the 

filing of an original return. I.R.C. § 6501(a); See also, Beard v. Commissioner, 82 T.C. 766, 780 (1984). This specific triggering device (i.e. the 

filing of a return) was not incorporated into I.R.C. § 4979A. 

4To the extent I.R.C. §§ 4979A and 6501 might create differing results 

here, this Court should be guided by the rules of resolving statutory conflicts. First, the Court should look for means to harmonize apparently 

conflicting statutes. Beal v. Commissioner, 13 B.T.A. 677, 683 (1928). If 

they may not be harmonized, only when two statutes irreconcilably conflict and the conflict cannot be resolved by interpretation, then the more 

specific statute controls over the more general one. Estate of Morgens v. 

Commissioner, 133 T.C. 402, 423 (2009) (citing 2B Singer & Singer, Statutes and Statutory Construction, sec. 51:2, at 216218 (7th ed. 2008)). In 

addition, where two irreconcilably conflicting statutes are involved, the 

more recent of the two prevails. Id. 
(265) LAW OFFICE OF JOHN H. EGGERTSEN P.C. v. COMM’R 269

In this case, if the Court applies these statutory conflict rules, both 

rules point to the primacy of I.R.C. § 4979A(e) (2) (D) over I.R.C. § 6501. 

First, § 4979A is the more specific statute, and second, it was more 

recently amended. 

In Eggertsen I, we accepted respondent’s position that section 4979A(e)(2)(D), not section 6501, controls resolution of 

the statute of limitations issue. We held that the period of 

limitations under section 4979A(e)(2)(D) for assessing the 

excise tax that section 4979A(a) imposes on petitioner has 

expired. 

Discussion 

The granting of a motion for reconsideration rests within 

our discretion. See Westbrook v. Commissioner, 68 F.3d 868, 

879 (5th Cir. 1995), aff ’g per curiam T.C. Memo. 1993–634; 

Estate of Quirk v. Commissioner, 928 F.2d 751, 759 (6th Cir. 

1991), aff ’g in part, remanding in part T.C. Memo. 1988–286; 

Klarkowski v. Commissioner, 385 F.2d 398, 401 (7th Cir. 

1967), aff ’g T.C. Memo. 1965–328. A motion for reconsideration will be denied unless substantial error or unusual circumstances are shown. See Westbrook v. Commissioner, 68 

F.3d at 879; Estate of Quirk v. Commissioner, 928 F.2d at 

759; Alexander v. Commissioner, 95 T.C. 467, 469 (1990), 

aff ’d without published opinion sub nom. Stell v. Commissioner, 999 F.2d 544 (9th Cir. 1993); Vaughn v. Commissioner, 87 T.C. 164, 167 (1986). 

In Eggertsen I, it was respondent’s position that section 

4979A(e)(2)(D), not section 6501, controls resolution of the 

statute of limitations issue. In support of that position, 

respondent advanced the following arguments on brief in 

Eggertsen I: 

I.R.C. § 6501(a) is not the governing period of limitations under the facts 

of this case. By its terms * * * I.R.C. § 4979A(e) (2) (D) is the applicable 

statute of limitations in this case.4

The specific triggering requirement to begin the running of the statute 

under the circumstances of this case is the later of the date of the allocation or ownership at issue or the date when the taxpayer provides 

notification to the respondent of the ownership or allocation at issue. 

I.R.C. § 4979A(e) (2) (D). 

By contrast, the event that triggers the running of I.R.C. § 6501 is the 

filing of an original return. I.R.C. § 6501(a); See also, Beard v. Commissioner, 82 T.C. 766, 780 (1984). This specific triggering device (i.e. the 

filing of a return) was not incorporated into I.R.C. § 4979A. 
270 143 UNITED STATES TAX COURT REPORTS (265) 

4The circumstances involved here are materially distinguishable from 

the circumstances involved in certain other cases where we denied motions 

for reconsideration because theories or issues were raised in those motions 

that could have been, but were not, raised before we issued our original 

4To the extent I.R.C. §§ 4979A and 6501 might create differing results 

here, this Court should be guided by the rules of resolving statutory conflicts. First, the Court should look for means to harmonize apparently 

conflicting statutes. Beal v. Commissioner, 13 B.T.A. 677, 683 (1928). If 

they may not be harmonized, only when two statutes irreconcilably conflict and the conflict cannot be resolved by interpretation, then the more 

specific statute controls over the more general one. Estate of Morgens v. 

Commissioner, 133 T.C. 402, 423 (2009) (citing 2B Singer & Singer, Statutes and Statutory Construction, sec. 51:2, at 216218 (7th ed. 2008)). In 

addition, where two irreconcilably conflicting statutes are involved, the 

more recent of the two prevails. Id. 

In this case, if the Court applies these statutory conflict rules, both 

rules point to the primacy of I.R.C. § 4979A(e) (2) (D) over I.R.C. § 6501. 

First, § 4979A is the more specific statute, and second, it was more 

recently amended. 

In Eggertsen I, we accepted respondent’s position that section 4979A(e)(2)(D), not section 6501, controls resolution of 

the statute of limitations issue. We held that the period of 

limitations under section 4979A(e)(2)(D) for assessing the 

excise tax that section 4979A(a) imposes on petitioner has 

expired. 

In respondent’s motions, it is the position of respondent 

that section 6501, not section 4979A(e)(2)(D), controls resolution of the statute of limitations issue. In support of that 

position, respondent advances the following arguments in 

respondent’s motions: 

[T]he limitations period under I.R.C. § 4979A(e)(2)(D) supplements but 

does not replace the general limitations period under I.R.C. § 6501 or the 

specific limitations period under I.R.C. § 6501(c)(3). In this case, because 

the interaction between I.R.C. § 6501 and I.R.C. § 4979A was not discussed, the Opinion contains a substantial error of law when it implies 

that I.R.C. § 4979A replaces I.R.C. § 6501. Instead, because the limitations period under I.R.C. § 6501 is not superseded and has not expired, 

the period during which Respondent can assess the excise tax under 

I.R.C. § 4979A remains open. 

Upon reconsideration of our holding in Eggertsen I that the 

period of limitations under section 4979A(e)(2)(D) for 

assessing the excise tax that section 4979A(a) imposes on P 

for its taxable year 2005 has expired, we conclude that we 

committed substantial error. 4 That is because in so holding 
(265) LAW OFFICE OF JOHN H. EGGERTSEN P.C. v. COMM’R 271

opinion. See, e.g., CWT Farms, Inc. v. Commissioner, 79 T.C. 1054, 1057 

(1982) (‘‘We will generally not grant reconsideration to resolve issues 

which could have been raised during the prior proceedings[.]’’), 

supplementing 79 T.C. 86 (1982), aff ’d, 755 F.2d 790 (11th Cir. 1985); 

Lowry v. Commissioner, T.C. Memo. 2004–10, slip op. at 4 (‘‘On motions 

for reconsideration we do not, except under extraordinary circumstances, 

address any new issue which a party could have addressed but failed to 

address prior to the Court’s deciding the case.’’), supplementing T.C. Memo. 

2003–225, aff ’d, 171 Fed. Appx. 6 (9th Cir. 2006). 

we concluded implicitly, as respondent had argued expressly, 

that section 4979A(e)(2)(D), a specific statute applicable to 

the excise tax imposed by section 4979A(a), took precedence 

over section 6501, a general statute applicable to all taxes 

imposed by the Code. We conclude upon reconsideration that 

section 4979A(e)(2)(D) serves only to extend under the circumstances set forth therein the period of limitations prescribed by section 6501. Cf. BLAK Invs. v. Commissioner, 133 

T.C. 431, 435–436 (2009); Rhone-Poulenc Surfactants & 

Specialties, L.P. v. Commissioner, 114 T.C. 533, 542–543 

(2000). 

We consider now whether the period of limitations under 

section 6501 has expired for assessing the excise tax under 

section 4979A(a) for petitioner’s taxable year 2005 that was 

triggered by an event described in section 4979A(a)(3). Petitioner is liable for that excise tax. See sec. 4979A(c)(2). Form 

5330 is the form that the Commissioner of Internal Revenue 

has prescribed as the form in which, inter alia, the excise tax 

under section 4979A is required to be reported. We found in 

Eggertsen I that petitioner did not file Form 5330 for its taxable year 2005. Unless petitioner filed another document that 

qualifies as a return for section 4979A(a) excise tax purposes 

within the meaning of section 6501(a), the excise tax that 

section 4979A(a) imposes on petitioner for its taxable year 

2005 may be assessed at any time under section 6501(c)(3). 

We shall examine the record that the parties fully stipulated in Eggertsen I, see supra note 2, in order to determine 

whether petitioner filed for its taxable year 2005 a document 

that qualifies as a return for section 4979A(a) excise tax purposes within the meaning of section 6501(a). In order for a 

document filed by a taxpayer to qualify as a return within 

the meaning of section 6501(a), it must (1) contain sufficient 

information to calculate the taxpayer’s tax liability, (2) pur-
272 143 UNITED STATES TAX COURT REPORTS (265) 

5 As pertinent here, sec. 6501(b)(4) provides that for purposes of sec. 

6501 the filing of a return for a specified period in which an entry has 

been made with respect to a tax imposed under, inter alia, sec. 4979A, including a return in which an entry has been made showing no liability for 

such tax for such period, shall constitute the filing of a return of all 

amounts of such tax which, if properly paid, would be required to be reported in such return for such period. 6Petitioner made no entry in petitioner’s 2005 Form 1120S with respect 

to an excise tax imposed by sec. 4979A, not even an entry that showed no 

liability for that tax for taxable year 2005. See supra note 5. 

port to be a return, (3) constitute an honest and reasonable 

attempt by the taxpayer to satisfy the requirements of the 

Federal tax law, and (4) be executed under penalties of perjury. 5 See Beard v. Commissioner, 82 T.C. 766, 777 (1984), 

aff ’d per curiam, 793 F.2d 139 (6th Cir. 1986). 

The record contains the 2005 Form 1120S that petitioner 

filed around April 26, 2006, the employee benefit plan 2005 

annual return that the ESOP in question filed on a date not 

established by the record during 2006, and the amended 

employee benefit plan 2005 annual return that the ESOP in 

question filed on a date not established by the record. 

We turn first to petitioner’s 2005 Form 1120S. In that 

form, petitioner showed, inter alia, that during 2005 the 

ESOP in question owned 100% of the stock of petitioner. In 

order for the 2005 Form 1120S to qualify as a return for section 4979A(a) excise tax purposes within the meaning of section 6501(a), it must, inter alia, contain sufficient information to calculate petitioner’s excise tax liability for its taxable 

year 2005 under section 4979A(a). See Beard v. Commissioner, 82 T.C. at 777. The information necessary to calculate 

petitioner’s excise tax liability under section 4979A(a) for its 

taxable year 2005 includes information regarding the total 

value of all deemed-owned shares of all disqualified persons 

with respect to the ESOP in question. See sec. 4979A(a), 

(e)(2)(C). Petitioner’s 2005 Form 1120S did not contain that 

information. 6

On the record in Eggertsen I, we find that petitioner’s 2005 

Form 1120S does not qualify as a return for section 4979A(a) 

excise tax purposes within the meaning of section 6501(a). 

We turn next to the employee benefit plan 2005 annual 

return that the ESOP in question filed on a date not established by the record during 2006 and the amended employee 
(265) LAW OFFICE OF JOHN H. EGGERTSEN P.C. v. COMM’R 273

7The ESOP in question made no entry in the employee benefit plan 2005 

annual return that it filed with respect to an excise tax imposed by sec. 

4979A, not even an entry that showed no liability for that tax for taxable 

year 2005. See supra note 5. 

benefit plan 2005 annual return that that ESOP filed on a 

date not established by the record. In the employee benefit 

plan 2005 annual return, the ESOP in question showed that 

(1) its effective date was January 1, 1999; (2) it was maintained by petitioner during 2005; (3) it had three participants 

during 2005, two of whom were not identified and were 

described as ‘‘Active participants’’ and one of whom was 

identified as Kerry C. Duggan and described as ‘‘Other 

retired or separated participants entitled to future benefits’’; 

(4) it held assets at the end of 2005 valued at $401,500; and 

(5) its assets consisted exclusively of ‘‘Employer securities’’. 

In the amended employee benefit plan 2005 annual return, 

the ESOP in question showed information that was identical 

in most respects to the information that it had showed in the 

employee benefit plan 2005 annual return, except that (1) the 

ESOP in question did not identify in the amended employee 

benefit plan 2005 annual return the individual described in 

that return as ‘‘Other retired or separated participants entitled to benefits’’ and (2) the ESOP in question showed in the 

amended employee benefit plan 2005 annual return that it 

held assets at the end of 2005 valued at $868,833, which 

included ‘‘Employer securities’’ valued at that yearend at 

$401,500. 

As discussed above, petitioner is liable for its taxable year 

2005 for the excise tax under section 4979A(a) that we found 

in Eggertsen I was triggered by an event described in section 

4979A(a)(3). See sec. 4979A(c)(2). The ESOP in question, not 

petitioner, filed the employee benefit plan 2005 annual 

return and the amended employee benefit plan 2005 

annual return. Assuming arguendo that petitioner had filed 

those returns, they did not contain the information regarding 

the total value of all deemed-owned shares of all disqualified 

persons with respect to the ESOP in question that was necessary to calculate petitioner’s excise tax liability under section 4979A(a) for its taxable year 2005. 7 See sec. 4979A(a), 

(e)(2)(C). 
274 143 UNITED STATES TAX COURT REPORTS (265) 

On the record in Eggertsen I, we find that neither the 

employee benefit plan 2005 annual return nor the amended 

employee benefit plan 2005 annual return that the ESOP in 

question filed qualifies as a return for section 4979A(a) purposes within the meaning of section 6501(a). 

On the record in Eggertsen I, we find that petitioner did 

not file with respondent any document that qualifies as a 

return for purposes of section 4979A(a) within the meaning 

of section 6501(a). On that record, we hold that the excise tax 

under section 4979A(a) for petitioner’s taxable year 2005 may 

be assessed at any time under section 6501(c)(3). 

We have considered all of the contentions and arguments 

of the parties that are not discussed herein, and we find 

them to be without merit, irrelevant, and/or moot. 

To reflect the foregoing, 

An order granting respondent’s motions 

and vacating the decision for petitioner 

entered on February 12, 2014, and decision 

for respondent will be entered.