W. Robert Curtis and Cheryl L. Riess-Curtis - Page 8

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          circumstances, to vacate and correct a final decision where it is           
          based upon a mutual mistake of fact, see La Floridienne J.                  
          Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933).4            
               In the present case, there is no allegation that the                   
          decision arose from either a fraud upon the Court or mutual                 
          mistake.  Respondent's Motion for Leave is based solely on the              
          allegation that the Court lacked jurisdiction to enter the                  
          decision of August 31, 1995.  Specifically, respondent contends             
          that the loss attributable to petitioners' interest in the                  
          Curtis-Hamada partnership, in the amount of $35,854, is a                   
          partnership item that must be determined at the partnership                 
          level.  Therefore, in respondent's view, the Court lacked                   
          jurisdiction to enter a decision insofar as the decision                    
          purported to resolve the tax treatment of such partnership item.            
               It is undisputed that the tax treatment of any partnership             
          item generally is determined at the partnership level pursuant to           
          the unified audit and litigation procedures set forth in sections           
          6221 through 6231.  TEFRA sec. 402(a), 96 Stat. 648.  The TEFRA             
          procedures apply with respect to a partnership's taxable years              
          beginning after September 3, 1982.  Sparks v. Commissioner, 87              

          4 Although the U.S. Court of Appeals for the Sixth Circuit                  
          cited mutual mistake of fact as a grounds for vacating a final              
          decision of this Court in Reo Motors, Inc. v. Commissioner, 219             
          F.2d 610 (6th Cir. 1955), the Sixth Circuit recently concluded              
          that Reo Motors, Inc. was effectively overruled by virtue of the            
          Supreme Court's affirmance of Lasky v. Commissioner, 235 F.2d 97            
          (9th Cir. 1956), affg. 22 T.C. 13 (1954), affd. per curiam 352              
          U.S. 1027 (1957).  See Harbold v. Commissioner, 51 F.3d 618, 621-           
          622 (6th Cir. 1995).                                                        

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