Yvonne E. Thurner v. Commissioner of Internal Revenue

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 7, 2007*
Decided November 20, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2383
YVONNE E. THURNER,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from the United States Tax
Court
No. 9971-01
Stephen J. Swift,
Judge.
O R D E R
Yvonne Thurner challenges the Tax Court’s refusal to consider her third
motion to vacate the parties’ stipulation of dismissal. For the reasons that follow,
we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2383 Page 2
This appeal constitutes the latest attempt by Thurner to evade her
outstanding tax liability. See United States v. Thurner, 21 Fed. Appx. 477, 478-79
(7th Cir. 2001). The background history is uncontested. The Internal Revenue
Service determined that Thurner and her husband, Scott, underpaid their federal
taxes for 1981, 1990, and 1992. With interest and penalties, the government sought
a total of approximately $2.9 million. After receiving notice of the deficiency,
Thurner and her husband eventually paid almost $1.7 million. The government
then filed suit in 2000 to recover the balance. The district court granted summary
judgment in favor of the government and in 2001, after concluding that Thurner
and her husband had filed a frivolous appeal, we affirmed that judgment and
sanctioned them. See id.
In December 2000, after the district court ruled against them but before we
issued our decision, Thurner again requested relief from the Tax Court, asserting,
among other claims, that she was an “innocent spouse” under 26 U. S. C. § 6015(b)
of the Internal Revenue Code. The government moved for summary judgment,
which the Tax Court granted in part, but the court concluded that Thurner’s claim
for relief as an innocent spouse should continue. See Thurner v. Comm’r, 121 T.C.
43, 53 (2003). Turner eventually sought counsel, and in December 2005 both
Thurner’s lawyer and the government’s lawyer stipulated to the Tax Court that she
was not entitled to relief under § 6015. In his declaration to the Tax Court,
Thurner’s attorney insisted that he “believed . . . [he] had the authority on behalf of
Yvonne Thurner to execute the [s]tipulation . . . .” But five days after the Tax Court
accepted the stipulation to dismiss, Thurner informed the attorney that she had not
authorized the stipulation and did not agree with it. Thurner’s lawyer then moved
to both vacate the Tax Court’s acceptance of the stipulation and to withdraw from
the case. Thurner also filed a pro se motion to vacate the decision. In January 2006
the Tax Court granted the attorney’s motion to withdraw, but denied both counsel’s
and Thurner’s motions to vacate. Thurner did not timely appeal that denial, nor
the stipulated dismissal of her case one month earlier.
In March 2006 Thurner filed her third motion to vacate. After noting that
the motion was untimely because Thurner had filed it more than thirty days after
the court’s decision to accept the stipulation, see Tax Court Rule 162, 26 U.S.C.
§ 7453, the Tax Court refused to consider the motion. Thurner then filed a notice of
appeal, apparently seeking to challenge all of the Tax Court’s rulings. Because the
notice was untimely as to the December and January orders denying relief, we
limited the appeal to a review of the Tax Court’s order refusing the third motion to
vacate.
We review, for an abuse of discretion, the Tax Court’s refusal to vacate the
stipulated dismissal order. See Drobny v. Comm’r, 113 F.3d 670, 676-77 (7th Cir.
1997). We previously have analogized a tax court’s denial of a motion to vacate to a

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No. 06-2383 Page 3
district court’s denial of relief from judgment under Federal Rule of Civil Procedure
60(b). See id.; Estate of Kraus v. Comm’r, 875 F.2d 597, 602 (7th Cir. 1989). This
type of relief is “an extraordinary remedy and is granted only in exceptional
circumstances.” Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006)
(quotation omitted). A court has abused its discretion only where no reasonable
person could agree with its judgment. See Harold Washington Party v. Cook
County, Ill. Democratic Party, 984 F.2d 875, 879 (7th Cir. 1993).
Thurner claims she submitted “newly discovered” evidence showing that her
attorney did not have the authority to enter into the stipulation. But she raised the
same argument of lack of authority in her first and second motions to vacate, and
she does not explain—as she must—why she could not have presented this evidence
earlier. See Fed. R. Civ. P. 60(b)(2) (new evidence must have been unavailable at
time of original decision); Publicis Commc’n v. True North Commc’ns, Inc., 206 F.3d
725, 730 (7th Cir. 2000). Moreover, we cannot see how the Tax Court abused its
discretion in refusing to hear for the third time her argument that her retained
attorney was not authorized to enter stipulation. See Caisse Nationale de Credit
Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (“Reconsideration is
not an appropriate forum for rehashing previously rejected arguments or arguing
matters that could have been heard during the pendency of the previous motion.”).
Finally, motions to vacate are not a substitute for an appeal, Local 322, Allied
Indus. Workers of Am. v. Johnson Controls, Inc., 969 F.2d 290, 292-93 (7th Cir.
1992), and Thurner failed to appeal the original decision denying her motion to
vacate the dismissal order.
AFFIRMED.

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