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standing to contest these proceedings. The Court set the motion for a hearing
in which Mr. Stillman was permitted to participate. Although Mr. Stillman's
evidence was accepted for what it was worth, this Court generally gives little
weight to a taxpayer's opposition to the spouse's entitlement to innocent
spouse relief. See Garvey v. Commissioner, T.C. Memo. 1993-354; Estate of
Ravetti v. Commissioner, T.C. Memo. 1989-45. Respondent, on brief, argued
against granting the Motion for Leave.
We defined "fraud on the court" in Abatti v. Commissioner, 86 T.C. 1319,
1325 (1986), affd. 859 F.2d 115 (9th Cir.1988), as follows:
"Fraud on the court is "only that species of fraud which does, or
attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery can not
perform in the usual manner its impartial task of adjud[g]ing
cases that are presented for adjudication. Fraud, inter partes,
without more, should not be a fraud upon the court * * *" Toscano
v. Commissioner, 441 F.2d at 933, quoting 7 J. Moore, Federal
Practice, par. 60.33 (2d ed. 1970). To prove such fraud, the
petitioners must show that an intentional plan of deception
designed to improperly influence the Court in its decision has had
such an effect on the Court. * * * [Citations omitted.]"
The burden is on the moving party to show such fraud by clear and
convincing evidence. Kraasch v. Commissioner, 70 T.C. 623, 626 (1978);
Spielberger v. Commissioner, T.C. Memo. 1989-444. Gross neglect on the part
of taxpayer's counsel does not constitute fraud on the Court. Kenner v.
Commissioner, 387 F.2d 689 (7th Cir. 1968).
In our opinion petitioner has failed to establish that a fraud was
perpetrated on this Court. While it is true that petitioner did not receive a
copy of the MAR Memorandum, it does not follow that receipt by her of that
document would have made any difference. During that time frame, petitioner
was mainly concerned with the welfare of her son and paid little attention to
the various materials sent to her by her lawyers. Thus, we conclude that she
either knew or should have known about the innocent spouse defense because of
the ongoing negotiations between 1986 and 1990 related to her divorce and the
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