NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL H. BOULWARE, 

Petitioner-Appellant, 

 v. 

COMMISSIONER OF INTERNAL 

REVENUE, 

Respondent-Appellee.

No. 19-73235 

IRS Nos. 5514-16 

5885-16 

MEMORANDUM*

On Petition for Review of an Order of the

United States Tax Court

Argued and Submitted April 14, 2021

San Francisco, California

Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.

Michael H. Boulware (Boulware) appeals from the tax court’s decision that 

there are deficiencies, penalties, and additions to tax due from Boulware for tax years 

1989–1997. He challenges the tax court’s denial of his motion for reconsideration

under Tax Court Rule of Practice and Procedure 161 (Rule 161), in which he argued 

that the Commissioner failed to meet his burden of production under 26 U.S.C. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

APR 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

§ 6751(b). We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review for abuse 

of discretion, and we affirm. Parkinson v. Comm’r, 647 F.2d 875, 876 (9th Cir. 

1981) (per curiam) (“The Tax Court’s denial of a motion for reconsideration will not 

be overturned on appeal absent a clear abuse of discretion.”).

On December 9, 2015, the Commissioner issued two separate notices of 

deficiency determining civil deficiencies in tax, along with penalties, for Boulware’s 

1989–1993 and 1994–97 tax years. Boulware filed two petitions in the tax court for 

a redetermination of the income tax liability reflected in those notices of deficiency, 

and the petitions were consolidated.

Relevant to this appeal, during the March 2019 trial, the tax court admitted 

the Commissioner’s Exhibit 3162-R into evidence. That exhibit included the 

declaration of IRS Supervisory Revenue Agent Kristina Thompson and a Civil 

Penalty Approval Form that approved the assertion of a fraud penalty for Boulware’s 

1994–97 tax years. Thompson signed the form on January 17, 2013. On March 8, 

2019, the tax court held a hearing to review the record with counsel. The 

Commissioner argued that Exhibit 3162-R satisfied the burden of production under 

§ 6751(b) with respect to the fraud penalty for the 1994-97 tax years. The tax court 

asked if Boulware “ha[d] a counterargument,” and his attorney responded, “No.”

On March 14, 2019, the tax court issued a bench opinion upholding the 

deficiencies, penalties, and additions to tax for Boulware’s tax years 1989–1993 and 
3 

1994–1997. Among other things, the tax court found that “[e]vidence supporting 

that [Boulware’s] additions to tax and the penalty for fraud were approved by 

supervisors for the IRS have been admitted into the record of this case, and the 

conformity of respondent’s actions with section 6751 is not at issue as it has been 

conceded by [Boulware] that the appropriate forms were signed by the supervisory 

personnel of the [IRS].”

On May 10, 2019, Boulware filed a motion for reconsideration and, for the 

first time, argued that the Commissioner failed to meet his burden of production 

under § 6751(b) with respect to the fraud penalties.1 Section 6751 provides: “No 

penalty under this title shall be assessed unless the initial determination of such 

assessment is personally approved (in writing) by the immediate supervisor of the 

individual making such determination or such higher level official as the Secretary 

may designate.” 26 U.S.C. § 6751(b).

To support his motion for reconsideration, Boulware submitted several 

exhibits that were not part of the tax court trial record, including a thirty-day letter 

from the IRS to Boulware accompanied by an “examination report showing 

proposed changes” to tax and penalties for Boulware’s 1994–1997 tax years. The 

letter was dated October 9, 2012 and signed by Supervisory Internal Revenue Agent 

1 On appeal, Boulware only challenges the § 6751(b) requirement for the fraud 

penalties for his 1994–1997 tax years.
4 

Kristina Thompson. The examination report included computations for proposed 

civil fraud penalties under 26 U.S.C. § 6663 for the years 1994–1997 and a failureto-file penalty under § 6651(a)(1).

Relying on Clay v. Comm’r, 152 T.C. 223 (2019), Boulware argued that for 

purposes of § 6751(b), a thirty-day letter is the initial determination to assess 

penalties on a taxpayer, and that written supervisory approval must be obtained 

before the first formal communication of that initial determination to the taxpayer. 

He argued that the penalty approval form admitted at trial did not satisfy the 

Commissioner’s burden to establish written supervisory approval under § 6751(b) 

because it was signed after the thirty-day letter was sent to Boulware. The tax court 

denied the motion as “inconsistent with Rule 161.” The tax court also concluded 

that, on the facts of this case, Clay did not require a “separate approval form[]” in 

addition to the “thirty day letter[].”

The tax court did not abuse its discretion by denying the motion for 

reconsideration as inconsistent with Rule 161. Parkinson, 647 F.2d at 876. 

Boulware’s Rule 161 motion presented a new legal argument—that the civil penalty 

approval form did not satisfy § 6751(b)’s written supervisory approval requirement 

because it was signed after the thirty-day letter was sent to Boulware. Boulware 

argues that he could not have raised this argument sooner because it was based on 

Clay v. Commissioner, which was issued after the tax court’s bench opinion. But 
5 

Boulware has not identified any prior controlling law that Clay changed. And 

nothing prevented Boulware from making the same arguments as the taxpayers in 

Clay before the bench opinion was issued.

Thus, the tax court did not abuse its discretion in denying the motion for 

reconsideration as inconsistent with Rule 161 because it raised a new legal theory 

that reasonably could have been asserted earlier in the litigation. See Kona Enters.

Inc. v. Est. of Bishop, 229 F.3d 887, 890 (9th Cir. 2000) (“A Rule 59(e) motion may 

not be used to raise arguments or present evidence for the first time when they could 

reasonably have been raised earlier in the litigation.”); Goettee v. Comm’r, 87 

T.C.M. (CHH) 808, 2004 WL 27767, at *3 (2004) (explaining that Rule 161 is 

intended “to correct manifest errors or fact or law” and not to allow “new legal 

theories to reach the result desired by the moving party”).

AFFIRMED.