81 T.C. 949">*950 SUPPLEMENTAL OPINION

This case is before us on petitioner's motion for reconsideration of our opinion in the above-entitled case, 81 T.C. 246">81 T.C. 246 (1983). Under the facts of this case, Dante M. Fiorini (petitioner), personal representative of the Estate of Pierre J. Bailly, deceased, properly elected under section 6166¹ to pay the estate tax liability in 10 equal installments. Petitioner deducted on the initial Federal estate tax return an estimate of the interest to be accrued over the 10 year deferral period. The issue before us was the proper timing of the deduction of the interest under section 2053(a)(2). We held that petitioner may deduct from the value of the gross estate under section 2053(a)(2) the amount of interest on Federal and State estate tax liabilities only as that interest accrues. Our holding was based on our conclusion that unaccrued interest is not ascertainable with reasonable1983 U.S. Tax Ct. LEXIS 7">*12 certainty within the meaning of section 20.2053-1(b)(3), Estate Tax Regs., because of (1) considerable fluctuation in interest rates, and (2) the possibility of 81 T.C. 949">*951 acceleration or prepayment of the estate tax liability. Decision was to be entered pursuant to Rule 155. ² The decision has not yet been entered.

The granting of a motion for reconsideration rests within the discretion of this Court. Such a motion is generally denied unless unusual circumstances or substantial error is shown. Haft Trust v. Commissioner, 62 T.C. 145">62 T.C. 145 (1974), affd. on this issue 510 F.2d 43">510 F.2d 43, 510 F.2d 43">45 n. 1 (1st Cir. 1975). In this case, we granted petitioner's motion by order dated 1983 U.S. Tax Ct. LEXIS 7">*13 November 4, 1983, ³ because petitioner has persuasively presented that the possible ramifications of our opinion were not given prior adequate consideration. Furthermore, this reconsideration addresses only dicta in our original opinion and not our holding in the case. Thus, any reason not to grant the motion stemming from concerns that we may have about granting a rehearing for presentation of additional evidence or a new theory is not present here. See Pierce Oil Corp. v. Commissioner, 30 B.T.A. 469">30 B.T.A. 469 (1934).

Petitioner requests reconsideration of the portion of our opinion relating to petitioner's entitlement to estate tax deductions for interest on the Federal and State tax liabilities accruing after the date of entry of our decision. Specifically, the request for reconsideration concerns two portions of our original opinion (now amended). 1983 U.S. Tax Ct. LEXIS 7">*14 First, on page 11 (of the slip opinion), we considered petitioner's contention that not allowing the interest to be estimated and be deducted "up front" would be inappropriate because taxpayers do not receive the protection of the suspension of the statute of limitations during the period of deferral of the estate tax payment. In dismissing petitioner's contention that the statute of limitations suspension is unavailable to taxpayers, we stated that petitioner could use Rev. Rul. 80-250, 1980-2 C.B. 278, and Rev. Proc. 81-27, 1981-2 C.B. 548, ⁴ to obtain deductions for 81 T.C. 949">*952 interest paid after the date of entry of our decision by filing a supplemental Form 706 after the interest has accrued. We further stated that petitioner may file a claim for refund in the event that the final total of petitioner's payments exceeds the ultimate estate tax liability. Second, we dismissed, in note 9 (slip opinion at 12), the parties' suggestion that this Court defer the entry of its decision until the 10-year installment period is concluded because of the inconvenience, hardship, and administrative expense1983 U.S. Tax Ct. LEXIS 7">*15 such a procedure would entail.

In his motion, petitioner requests that we modify our opinion in one of the two following ways: (1) Find and order in our opinion and our decision that petitioner shall be entitled to use Rev. Rul. 80-250 and Rev. Proc. 81-27,1983 U.S. Tax Ct. LEXIS 7">*16 supra, and to deduct for Federal estate tax purposes all the interest incurred on both the Federal and State estate tax liabilities, including interest accruing after the date of entry of the decision (first alternative request); or (2) defer entry of our decision until expiration of the Federal estate tax installment payment period elected by petitioner under section 6166 (second alternative request).

Respondent objects to petitioner's first alternative request because he contends that section 7459(c) and Rule 155 require that our decision specify a dollar amount and, therefore, preclude entry of a decision that would, by its terms, be an indefinite amount that changes over time. However, with respect to petitioner's second alternative request, respondent has repeatedly stated that he has no objection to carrying this case on his open docket until the final installment is due.

We agree with respondent that our decision in this case must specify a fixed dollar amount and, therefore, we reject petitioner's first alternative request. Section 6213(a)⁵ provides 81 T.C. 949">*953 that within 90 days (or 150 days, where applicable) after the notice of deficiency is mailed, the taxpayer 1983 U.S. Tax Ct. LEXIS 7">*17 may file a petition with this Court for a redetermination of the deficiency. No assessment or collection of the deficiency shall be made until the decision of this Court becomes final.

1983 U.S. Tax Ct. LEXIS 7">*18

Where a petition for a redetermination of the deficiency is filed and not dismissed, section 7459(c)⁶ provides that a decision of this Court is rendered upon the date that an order that specifies the amount of the deficiency is entered in this Court's records. Section 6503(a)(1) provides that the statute of limitations on assessment and collection is suspended --

for the period during which the Secretary is prohibited from making the assessment or from collecting by levy or a proceeding in court (and in any event, if a proceeding in respect of the deficiency is placed on the docket of the Tax Court, until the decision of the Tax Court becomes final), and for 60 days thereafter.

1983 U.S. Tax Ct. LEXIS 7">*19 The entire scheme of these sections necessarily indicates that this Court will redetermine a deficiency in the form of a specific dollar amount. Once the decision becomes final, the period for assessment and collection is no longer suspended and the Commissioner may proceed to collect the redetermined amount due. This statutory scheme would be frustrated if this Court were able to render a decision without fixing the 81 T.C. 949">*954 redetermined amount of the deficiency and would also be in direct contravention to the provisions of section 7459(c). As previously stated, under section 7459(c), a decision is rendered on the date that an order specifying the amount of the deficiency is entered. Furthermore, Rule 155, ⁷ under which a decision will be entered in this case, contemplates that the decision of this Court be an exact amount of deficiency or overpayment. Rule 155 is consistent with the statutory scheme explained above.

1983 U.S. Tax Ct. LEXIS 7">*20 Although we reject petitioner's first alternative request for the reasons stated above, we are granting petitioner's second alternative request because we agree with both petitioner and respondent ⁸1983 U.S. Tax Ct. LEXIS 7">*21 who contend that it is unlikely that petitioner will be able to use Rev. Rul. 80-250 and Rev. Proc. 81-27, supra, due to the provisions of section 6512(a). ⁹ The consequence of the operation of section 6512(a) and, therefore, of petitioner's inability to use Rev. Rul. 80-250 and Rev. Proc. 81-27, supra, is that petitioner will be foreclosed from claiming a legitimate deduction on the estate tax return for interest accruing on the deferred estate taxes after the date of entry of our decision.

81 T.C. 949">*955 Our conclusion is based upon the express language of the statute, as interpreted by the cases to be discussed. Under section 6512(a), ¹⁰ if a taxpayer files a timely petition with this 81 T.C. 949">*956 1983 U.S. Tax Ct. LEXIS 7">*22 Court after receiving a notice of deficiency, no credit or refund shall be allowed and no suit shall be instituted in any court.

1983 U.S. Tax Ct. LEXIS 7">*23 In Moir v. United States, 149 F.2d 455">149 F.2d 455 (1st Cir. 1945), the taxpayer, an executor of an estate, filed a petition with the Board of Tax Appeals for a redetermination of an estate tax deficiency. After the Board's opinion in that case was filed, the taxpayer paid the redetermined deficiency, and, after the decision of the Board became final, filed a claim for refund based on expenses for attorney's fees that had not been previously allowed. The claim was disallowed by the Commissioner on the ground that the refund was precluded by section 319(a), Revenue Act of 1926, as amended (see note 10 supra). Thereafter, a suit for refund was instituted by the taxpayer. The Court of Appeals held that the predecessor to section 6512(a) barred the taxpayer's action, even though the attorney fees could not have been reasonably estimated prior to the proceedings before the Board. The Court of Appeals, 149 F.2d at 460, further stated as follows:

It may be that the strict provisions of Section 319(a), as we have applied them here, do work a hardship on taxpayers in certain situations. For instance, losses from fire or theft incurred1983 U.S. Tax Ct. LEXIS 7">*24 during the settlement of the estate are deductible from the gross estate under Section 303(a)(1). Appellant points out that if, after a decision of the Tax Court redetermining a deficiency has become final, the estate should suffer such a loss, the executor would be utterly without any remedy to obtain the corresponding refund under the literal reading of Section 319(a); this, despite the fact that the deductibility of such loss could not have been litigated in the Tax Court proceedings because it had not then occurred. * * * But relief from such hardships, if they exist, must come from Congress, by appropriate modification of the section. It does seem that the possibly harsh operation of Section 319(a) in situations like the present, and in other exceptional cases which might be suggested, deserves consideration by the Congress.

In Empire Trust Co. v. United States, 214 F. Supp. 731">214 F. Supp. 731 (D. Conn. 1963), affd. per curiam 324 F.2d 507">324 F.2d 507 (2d Cir. 1963), the facts were similar to those in 149 F.2d 455">Moir v. United States, supra. The expenses that were the subject of the claim and the suit for refund were additional1983 U.S. Tax Ct. LEXIS 7">*25 administration expenses and additional State inheritance taxes. The former expenses were incurred 81 T.C. 949">*957 either after or during the litigation in the Tax Court and the latter expenses were a direct result of the decision of the Tax Court. The court in Empire Trust held that section 911, I.R.C. 1939, ¹¹1983 U.S. Tax Ct. LEXIS 7">*27 barred the tax refund suit because of the prior filing by the taxpayer of a petition in the Tax Court. The court found that section 911, 1939 Code, was a statute of limitations section and that after a filing of a petition in the Tax Court for a redetermination of an estate tax deficiency, the District Court has no jurisdiction over a subsequent suit for a refund of estate taxes. ¹² This conclusion is consistent with our interpretation of section 6512(a) in Dorl v. Commissioner, 57 T.C. 720">57 T.C. 720, 57 T.C. 720">721-722 (1972), affd. 507 F.2d 406">507 F.2d 406 (2d Cir 1974), wherein we stated that --

it is the taxpayer's action in filing a valid petition in the Tax Court, under circumstances which give the Tax Court jurisdiction, and not any action taken by the Court, that bars a subsequent refund suit in the U.S. District Court. [Citations and1983 U.S. Tax Ct. LEXIS 7">*26 fn. ref. omitted.]

Like the Court of Appeals in 149 F.2d 455">Moir v. United States, supra, the District Court in Empire Trust Co. v. United States, 214 F. Supp. 731">214 F. Supp. at 735, commented on the harshness of this result as follows:

As so often happens in applying statutes of limitations, the result here is a harsh one. Balanced against such a harsh result are the usual considerations of public policy reflected in legislative enactment of statutes of limitations; in particular, this statute of limitations reflects Congressional policy of doing away with uncertainty and delay in the assessment and collection of federal estate taxes. * * *

But the harshness of this statute of limitations has been recognized, as in Moir, where the deductibility of the expense in question in the subsequent action in the District Court could not have been litigated in the Tax Court. 149 F.2d 455">Moir v. United States, supra at 460. * * *

Based on the foregoing, we think that it is unlikely that petitioner will be able to use Rev. Rul. 80-250 and Rev. Proc. 81-27, supra, in order to obtain an estate tax deduction for 81 T.C. 949">*958 interest accruing on the tax liabilities after the decision in this case is entered. Like the Courts in 149 F.2d 455">Moir v. United States, supra, and 214 F. Supp. 731">Empire Trust Co. v. United States, supra, we are troubled by the harshness of section 6512(a) with respect to estate tax cases. Therefore, in the interests of fairness and justice and in light of the fact that respondent has no objection, we agree to postpone1983 U.S. Tax Ct. LEXIS 7">*28 entry of our decision in this case until the final installment of the estate tax liability is due, or paid, whichever is earlier. We have modified our original opinion in this case to be consistent with this conclusion.

However, holding these cases open results in inconvenience, hardship, and administrative expenses to this Court and to the parties involved. With our holding in this case that interest expenses are deductible only when they accrue, we fear that the number of taxpayers who find themselves in petitioner's situation may increase. Therefore, we think that a congressional solution to this problem is needed.

To reflect the foregoing,

An appropriate order has been issued.