ORDERS:
ORDER DENYING MOTION FOR RECONSIDERATION
In the above-captioned matter, this tribunal issued a Final Order and Decision on April 21,
2004. In that Order, this tribunal found that Petitioner (Taxpayer) was not entitled to exclude the
portion of his military retirement income attributable to his active duty service from his gross South
Carolina income under S.C. Code Ann. § 12-6-1120(7) (2000) and that Respondent South Carolina
Department of Revenue’s (Department) adjustment of Taxpayer’s income tax filings based upon the
exclusion solely of Taxpayer’s reserve retirement income must be sustained. By a motion filed on
May 3, 2004, Taxpayer moved for reconsideration of that Order pursuant to ALC Rule 29(D). The
essence of the grounds stated by Taxpayer is a reargument and reiteration of previously made
arguments that 100% of his military retirement income should be excludable from his gross income,
rather than the 89.3% ratio the law entitles him to exclude.
Occasionally, in the rendering of hundreds of decisions a year, a motion for reconsideration
is filed and it prevails upon me that “the matter does not appear to me now as it appears to have
appeared to me then.” Andrews v. Styrap, 26 L.T.R. 704, 706 (Ex. 1872). However, such is not the
case in the instant matter. Even though Taxpayer, in his motion, describes a certain portion of the
Final Order and Decision as “hard to understand, . . . abstruse, recondite, esoteric, stupefying,
confusing, bewildering, and to have no pertinence to the issues raised in this case about state taxation
of his non-regular military retirement income, particularly when taken with the issues with respect
thereto raised in this motion,” he has not stated sufficient grounds for relief. (Pet’r Mot. for
Reconsideration at 4.)
Rule 29(D) of the ALC Rules of Procedure governs motions for reconsideration of final
decisions issued in contested cases before the ALC. Under Rule 29(D), “[a]ny party may move for
reconsideration of a final decision of an administrative law judge in a contested case, subject to the
grounds for relief set forth in Rule 60(b)(1)-(5), SCRCP[.]” By explicitly incorporating the grounds
for relief from a judgment listed in Rule 60(b), ALC Rule 29(D) limits the grounds upon which a
motion for reconsideration of an ALC decision may be based to the following five reasons:
(1)mistake, inadvertence, surprise, or excusable neglect;
(2)newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[, SCRCP];
(3) fraud, misrepresentation, or other misconduct of an adverse party;
(4)the judgment is void;
(5)the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
Rule 60(b), SCRCP; see also Mictronics, Inc. v. S.C. Dep’t of Revenue, 345 S.C. 506, 510, 548
S.E.2d 223, 225 (Ct. App. 2001) (noting that “under the AL[C] rules, it appears the only grounds for
reconsideration are those contained in Rule 60(b), SCRCP”). This limited basis for reconsideration
of ALC decisions accords with South Carolina administrative law predating the creation of this
tribunal. See Bennett v. City of Clemson, 293 S.C. 64, 66-67, 358 S.E.2d 707, 709 (1987) (“[A]n
agency’s power to reconsider or rehear a case is not an arbitrary one, and such power should be
exercised only when there is justification and good cause, i.e., newly discovered evidence, fraud,
surprise, mistake, inadvertence or change in conditions.”). Therefore, pursuant to ALC Rule 29(D)
and South Carolina administrative law generally, a motion for reconsideration filed with the ALC
is proper only if it articulates a basis for reconsideration that satisfies one of the Rule 60(b) criteria.
In the case at hand, Taxpayer’s mere reargument of his position plainly does not fall within one of
the criteria under ALC Rule 29(D) and Rule 60(b), SCRCP.
In his motion for reconsideration, Taxpayer states:
As a practical matter petitioner under Department of Defense Actuarial Tables has
a life expectancy at age 78 of about nine years. Therefore, the probability is that his
dispute involves something in the neighborhood of $100 per year, for a total of $900.
Consequently, petitioner has always had to face stark reality, petitioner having grown
up looking at the south end of a north bound mule, and thus does not have much to
win even if he wins, which looks doubtful, when considering the length to which the
[South Carolina] authorities are willing to present a convoluted, warped, and twisted
position in presenting [their] “reasonable” position concerning what constitutes
petitioner’s reserve time, and petitioner’s “total military time.”
(Pet’r Mot. for Reconsideration at 6.) However, the stark reality here is that Taxpayer is not entitled
under the law to the relief he seeks, despite his elaborate and extensive arguments to the contrary,
and as such, this tribunal cannot grant that relief. Accordingly,
IT IS HEREBY ORDERED that Taxpayer’s Motion for Reconsideration is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
May 18, 2004
Columbia, South Carolina |
