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facts clearly distinguish the Toscano case from the instant case.
Alternatively, petitioner urges this Court to grant the Motion for Leave based
upon the independent authority of Rule 60(b) of the Federal Rules of Civil
Procedure, which provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a
party or a party's legal representative from a final judgment,
order, or proceeding for the following 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); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), 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; or (6) any other reason
justifying relief from the operation of the judgment. The motion
shall be made within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment, order, or
proceeding was entered or taken. * * *
Petitioner's reliance on Rule 60(b) of the Federal Rules of Civil
Procedure is without merit. The Tax Court Rules of Practice and Procedure are
applicable here, along with the case law previously discussed. However, even
if Rule 60(b) were suitably adaptable to govern this situation, we note that
by its terms any such motion for fraud, misrepresentation, or other misconduct
of an adverse party must be made not more than one year after judgment
(decision) was entered. Petitioner failed to timely make any such motion.
Moreover, notwithstanding the cases cited by petitioner in her brief, we are
not persuaded that the record reflects the compelling equitable considerations
inherent in the phrase "any other reason justifying relief" contained in Rule
60(b)(6) of the Federal Rules of Civil Procedure.
Accordingly,
An order will be issued
denying petitioner's Motion for
Leave to File Motion to Vacate
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Last modified: May 25, 2011