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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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