- 8 -
Cir. 1989); Abeles v. Commissioner, 90 T.C. 103, 105-106 (1988);
Brannon's of Shawnee, Inc. v. Commissioner, 71 T.C. 108, 111-112
(1978), or if the decision was obtained through fraud upon the
Court; see Abatti v. Commissioner, 859 F.2d 115 (9th Cir. 1988),
affg. 86 T.C. 1319 (1986); Senate Realty Corp. v. Commissioner,
511 F.2d 929, 931 (2d Cir. 1975); Stickler v. Commissioner, 464
F.2d 368, 370 (3d Cir. 1972); Casey v. Commissioner, T.C. Memo.
1992-672. In addition, some courts have indicated that the Tax
Court has the power in its discretion, in extraordinary
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
On the other hand, the Court of Appeals for the Eighth Circuit
has adopted the more restrictive view that the Tax Court lacks
general equitable powers, and, therefore, that this Court lacks
the authority to vacate or revise an otherwise final decision.
See Webbe v. Commissioner, 902 F.2d 688, 689 (8th Cir. 1990),
affg. T.C. Memo. 1987-426; see also Heim v. Commissioner, supra
at 249 (Lay, C.J., concurring).
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), 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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