- 6 -
proof is on the party filing the motion to vacate, and such
burden must be established by clear and convincing evidence.
Kraasch v. Commissioner, 70 T.C. 623, 626 (1978).
This Court, in Abatti v. Commissioner, 86 T.C. 1319, 1325
(1986), affd. 859 F.2d 115 (9th Cir. 1988), has described the
term "fraud on the Court" 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. * * *
The evidence adduced at the hearing on petitioners' motion
falls far short of establishing fraud on the Court. Mr. Griffin
was counsel of record for petitioners, and no motion to remove or
cause the withdrawal of Mr. Griffin as counsel for petitioners
was filed until after petitioners filed the subject motion
seeking to vacate the decision.3 Thus, on January 5, 1994, when
Mr. Griffin and petitioner met with counsel for respondent, Mr.
Driscoll, Mr. Griffin was duly authorized to represent
petitioners in this case. Moreover, the evidence is clear that
3
Petitioners' motion to withdraw Mr. Griffin as their
attorney, filed on June 14, 1996, was granted by the Court by
order dated July 3, 1996.
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