You've already asked this question once; merely rephrasing it doesn't change that fact. That being said, a court's decision is res judicata in the case until and unless you have it overturned on appeal. If you sat on your hands and let the time for an appeal expire then you have no one to blame but yourself - you are stuck with that decision.
Your wording is interesting. "expressly does NOT make the finding of abuse of discretion" could mean that:
(1) was silent on "abuse of discretion"
(2) "we did not find abuse of discretion"
(3) "we affirmatively found no abuse of discretion"
then you left the specific area on abuse and asked in general if a case was res judicata.
You also didn't say why you thought (1), (2), or (3) was important.
Something is hidden in this description, and I can't tell what it is.
also consider whether 6330(g), if present, trumped a more specific finding.
Talk to your local Houston Tax attorney on this. Ira B. Shepard of the U. Houston Law school can refer you to one if you don't have a tax attorney.
Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.